I think all of us are aware of the most pertinent facts surrounding the Kim Davis controversy and her refusal to comply with the Supreme Court ruling and subsequently the order of Federal District Court Judge David Bunning, to issue marriage licenses to all couples, including same-sex couples. But before I get into the heart of the matter, let’s do a quick review of the timelines.
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- June 26, 2015 – the sweeping ruling of the Supreme Court that refusal to allow same-sex couples to marry is a violation of our Civil Rights. All states now required to grant marriage to same-sex couples on the same legal terms as is required for opposite-sex couples.
- June 29 – Davis declines to issue marriage licenses because of her religious beliefs.
- July 2 – The American Civil Liberties Union (ACLU) launches a lawsuit against Kim Davis on behalf of 4 couples, two same-sex and two opposite-sex couples.
- July 8 – Some county clerks request special legislative session to accommodate those who have religious objections. Governor Beshear denies the request, largely because of cost.
- August 12 – US District Court Judge David Bunning orders Davis to issue marriage licenses to same-sex couples.
- August 27 – The US 6th Circuit Court of Appeals denies Davis request for a stay of Judge Bunning’s order.
- September 1 – The Supreme Court also denies to grant Davis a stay.
- September 3 – Davis is found in contempt of court and Judge Bunning places her in jail and simultaneously orders that the county clerk’s office must issue marriage licenses to same-sex couples.
- September 8 – Judge Bunning releases Kim Davis since the clerk’s office issued marriage licenses to same-sex couples per his September 3rd order. He also orders Kim Davis to not interfere with the issuance of marriage licenses either directly or indirectly. Here is the order.
- September 14 – Kim Davis’s first day back after being released from jail. One of the very first things she does is alter the marriage license forms in four distinct ways. See image below.
- September 22 – The ACLU files motion in court against Kim Davis for illegally altering the marriage licenses, but even more importantly, for violating Judge Bunning's non-interference orders.
Now after Kim Davis altered the marriage licenses she turned around and made the claim that the licenses would not be valid with the alterations. I submit that she is purposely putting in motion a future legal challenge to marriage licenses issued under these conditions and so that the subsequent marriages will be invalidated.
Now I believe that the marriages will be deemed to be valid because they were received in good faith by the couples from the county clerk’s office responsible to issue them. But while I believe that is the case it does not change the fact that Kim Davis illegally altered the marriage license forms and that action constitutes interference with Judge Bunning’s court order to not interfere.
As the ACLU says:
In one instance, Mason said he had to issue the marriage license as a notary, rather than as a deputy clerk. On that license, Davis removed the county’s name. “Davis’ decision to significantly interfere with the marriage licenses being issued... not only violates the Court’s clear directive, but it also has resulted in material alterations to those licenses that render their validity questionable at best,” the ACLU argues.
Allowing Davis to continue this interference undermines the courts authority and is tempting other public officials to try and pull the same shenanigans as Davis. In fact that has already happened with a Probate Judge in Alabama who wanted to be released from his obligation to marry same-sex couples. It also happened with Casey Davis (no relation to Kim Davis) who is the county clerk in Casey County Kentucky.
Here is a quote from him:
He said if a same-sex couple requested a license, he would alter the form — much like Kim Davis has begun doing.
Brian Mason who is the Deputy clerk who has issued all the marriage licenses to same-sex couples since Kim Davis was released from jail has also expressed concerns about the legal validity of these altered marriage licenses.
The bottom line is that not only did Kim Davis illegally alter the marriage license forms which is a violation of state law (See Kansas Statutes: KRS 402.080, KRS 402.100 & KRS 402.110) but she also violated Bunning’s non-interference orders.
Now while Judge Bunning cannot directly address Kim Davis’ illegal alteration of the marriage licenses in terms of state law what he CAN and should address is that she violated his court order by interfering with the issuance of marriage licenses to same-sex couples.
I honestly don’t want to see Kim Davis jailed again because I don’t want her to be considered even more of a martyr than she already is. The ACLU has made the request that Rowan County Clerk’s office be placed in receivership to enforce the court order and ensure that Kim Davis is no longer allowed to interfere. This would likely be needed until the legislature takes action when they return in January. I think receivership + increasing fines until she complies is a better option than jailing her again.
So the question is, why hasn’t Judge Bunning taken action in response to the motion filed by the ACLU?
Now perhaps he will take action soon but I think there has been more than enough time for him to do so at this point. I am becoming concerned that he might be holding off until the legislature takes some sort of action in January but I think he is undermining his own authority as a Federal District Judge and the Federal courts in general if he chooses to let this slide.
Discuss in the comments.