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Dan Gilmore / September 3, 2015

What’s a County Clerk to Do?

A Democrat Kentucky clerk has refused to issue marriage licenses.

Consider the situation in every clerk’s office across the nation June 26 when the Supreme Court handed down its decision legalizing same-sex marriage. The clerks and their deputies faced a decision: Do they enforce the highest court’s orders?

For some, the ethical answer was easy. They valued so-called “equality” and welcomed Obergefell v. Hodges. For others — dozens if not hundreds — the answer was far more difficult in its application in their spheres. There were quiet struggles, town and county clerks asking themselves if they would act against their beliefs and issue a marriage license to a same-sex couple. The black-robed gods declared marriage something entirely different from the model set forth by God, who should take preeminence over the affairs of man and his government.

Soon, a court in Kentucky will decide if the clerk of Rowan County, Kim Davis, should be held in contempt, as her office has yet to issue marriage licenses to two same-sex marriage couples despite a court order.

> Update: Davis was held in contempt Thursday and taken into custody by U.S. marshals.

In response to Obergefell, Davis, a Democrat, ordered her office to stop issuing marriage licenses altogether. “To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience,” she said. She’s not alone, either.

After the U.S. District Court for the Eastern District of Kentucky ordered her to stop her blanket ban on marriage, Davis appealed. Her petition for a stay went all the way to the desk of Supreme Court Justice Elena Kagan. Perhaps that would have gone differently if the appeal made it to any of the dissenting justices, who argued so eloquently that Obergefell would call into question religious liberty.

Instead, Kagan denied Davis’ petition. It was the end of the legal line. On Sept. 1, April Miller and her partner Karen Roberts entered Davis’ office and asked for a marriage license. The deputy denied the request, even when the couple mentioned the action of the Supreme Court.

So in response, the American Civil Liberties Union filed a motion to hold Davis in contempt.

So what’s a county clerk to do? From running elections, to performing tax duties to keeping records, she has a lot to do in the county of 23,500 people. And when it comes to the issue of marriage, Kentucky law states that she alone can issue the licenses. It’s not just the two same-sex couples seeking marriages. Because of Davis’ actions, no one from that county can get a marriage license.

On the one hand, Davis is an elected official with a job to perform, and she has refused to do what a government is now supposed to do.

But as a person, Davis has another duty to her faith and conscience. Four years ago, she converted to Christianity. She rightly believes that marriage was instituted by God, and the question of whether or not to issue a marriage license to a same-sex couple is, as she put it, “a decision of obedience.”

Heritage Foundation marriage expert Ryan T. Anderson wrote of North Carolina, which passed a law that offered a compromise: “[N]o one can be denied a marriage license, but magistrates or clerks could recuse themselves from the process behind the scenes should they have sincere objections to same-sex marriage.”

And in clerks’ offices across the nation, that’s probably similar to the arrangement most conscientious objectors have made. When possible, this is ideal. It avoids hurting people in the community, it avoids hurting the larger movement for traditional marriage, and it avoids hurting the objecting clerks. Others probably resigned, or made plans to do so soon.

Yet Davis came to a different ethical conclusion. She decided to value her beliefs in Christianity and marriage over everything else, whatever the consequences, despite mockery, death threats, fines or even jail. That’s quite admirable, but she must live with the consequences.

The ACLU asked the court to “impose financial penalties sufficiently serious and increasingly onerous to compel Davis’ immediate compliance.” Or the court could, as the New Republic opined, “Throw Kentucky Clerk Kim Davis in Jail” as a lesson to anyone else that dare cross the state and its new definition of marriage.

We wonder if they feel that way about officials in so-called “sanctuary cities.”

“Our history is filled with accommodations for people’s religious freedom and conscience,” Davis said. “I want to continue to perform my duties, but I also am requesting what our Founders envisioned — that conscience and religious freedom would be protected. That is all I am asking. I never sought to be in this position, and I would much rather not have been placed in this position.”

But such is the mess the despots at the Supreme Court have made.

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