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Can a County Clerk Defy a Court Order?

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By Christopher Coble, Esq. on September 01, 2015 11:57 AM

The U.S. Supreme Court granted all same-sex couples the right to marry this June, but not all county clerks were happy with the decision. In particular, Kim Davis, the County Clerk of Rowan County, Kentucky, refused to issue any marriage licenses in the wake of the ruling, citing her religious beliefs.

Late yesterday, the Supreme Court declined to hear Davis's appeal, allowing a lower court decision directing her to issue marriage licenses to same-sex couples to stand. Undeterred, Davis continued her refusal to issue licenses this morning, and now she and her clerks have been summoned to a federal court hearing tomorrow morning. So what happens now?

How We Got Here

Following the Supreme Court ruling, Kentucky's governor, Steve Beshear, told county clerks to comply with the decision and issue marriage licenses to all eligible couples. Davis filed a suit in federal court, arguing that her religious beliefs preclude her from issuing marriage licenses to same-sex couples.

A federal District Court judge ruled against her and ordered her to issue the licenses, and the Sixth Circuit Court of Appeals agreed, holding that court clerks must issue same-sex marriage licenses:

"It cannot be defensibly argued that the holder of the Rowan County Clerk's office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court."

Davis appealed to the Supreme Court, who declined to hear the appeal, leaving the lower court's orders intact.

Where We Might Go

In refusing to issue same-sex marriage licenses to two couples this morning, Davis is now defying orders from the governor as well as federal court orders, putting her in contempt of court. Civil contempt can result in fines and/or jail time, and judges are permitted significant discretion in punishing contempt.

All eyes will be on Davis's court hearing tomorrow to see how the court responds. Davis could also be fired for failing to perform her official duties. She could cite protection from Kentucky's Religious Freedom Restoration Act, which provides religious exemptions in some cases. But in most cases, RFRAs have not been found to permit discrimination or denial of equal protection.

Editor's note, September 1, 2015: The ACLU has now filed two motions against Davis with a Kentucky district court. The motions call to hold Davis accountable for failing to carry out her duties.

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