Kim Davis’ resistance to same-sex marriage seems certain to generate a burst of new legislation aimed at carving out exemptions for such public employees.
WASHINGTON — Kim Davis did more than register a protest when she went to jail last week after defying a federal court order to issue marriage licenses to gay couples.
Davis, the clerk in Rowan County, Ky., also helped unravel an uneasy détente in the nation’s culture wars that had prevailed since the Supreme Court declared a constitutional right to same-sex marriage in June.
Some Republican presidential aspirants rushed to the defense of Davis, a Democrat, and other public employees who say sanctioning same-sex marriage undermines their religious freedom.
Her resistance seems certain to generate a burst of new legislation aimed at carving out exemptions for such employees, and it could spur others to risk jail in states such as Alabama, where religious objections are strong.
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Davis, 49, who has said she attends her Apostolic Christian church “whenever the doors are open” and who cited “God’s authority” in turning away gay couples who sought to marry, has emerged as a heroine to religious conservatives, many of whom feel aggrieved by the Supreme Court’s 5-4 decision on same-sex marriage, in Obergefell v. Hodges.
Her lawyer, Mat Staver, called her “the poster child for why you need religious-liberty exemption laws.”
Yet her jailing by a U.S. District Court judge, David Bunning, a former federal prosecutor who was appointed to the bench by President George W. Bush, has also exposed divisions within the Republican Party. While all 17 Republican presidential contenders are opposed to same-sex marriage, not all of them embraced Davis.
Although polls show more than half of Americans support same-sex marriage, a national survey released in July by The Associated Press found that Americans were split on whether state and local officials who have religious objections should be required to issue marriage licenses to gay couples. Forty-nine percent of respondents said officials should not be required to do so; 47 percent said they should.
Nonetheless, the Davis case has given fresh voice to religious conservatives, reawakening their anger over the Obergefell decision.
“This is a wake-up call,” said Mike Huckabee, the former governor of Arkansas and a Republican presidential candidate, who said he will go to Kentucky on Tuesday to support Davis.
He added: “The question that was always asked of us traditional marriage people was, ‘What difference does it make to you? So what? Why does it bother you?’ Well, maybe people are waking up and seeing why it bothers us. Now you have a county clerk sitting in jail.”
Barriers to same-sex marriage fell with astonishing speed after the ruling, and advocates for equal rights for gay people declared an end to the national same-sex marriage debate.
“Our opponents leading up to the decision were making the case that there would be a pretty massive backlash, that there would be very serious resistance, protests in the streets,” Marc Solomon, national campaign director of Freedom to Marry, an advocacy group, said in an interview last month. “That certainly is not the case. Even people who are not with us are not fired up about this.”
Davis seems to have upended that relative quiet. She stopped issuing marriage licenses to heterosexual and same-sex couples after the Obergefell ruling and has refused to resign from her $80,000-a-year job.
From conservative-talk radio to the grassy plaza outside the Rowan County courthouse — where Davis’ deputies issued licenses to gay and straight couples Friday while she was in jail — conservatives vowed their fight to exercise their religious rights was just beginning.
“The homosexual side, they feel they’ve won,” said Randy Smith, a Freewill Baptist pastor who has been organizing rallies in support of Davis and pressing Gov. Steve Beshear of Kentucky, unsuccessfully, to issue an executive order giving Davis the exemption she is seeking.
Smith had 2,000 signatures on a petition that, he said, asks the governor to issue an executive order “giving protection to county clerks,” which he hopes to deliver this week.
“If the governor refuses to meet with me,” he said, “I will make an unannounced trip down there, and I will have as much media coverage as I possibly can. I am not going to let this thing go.”
Twenty-one states have some form of religious-exemption law, but just one — North Carolina — has a specific measure exempting public officials from participating in same-sex marriages, according to the Movement Advancement Project, which tracks gay-rights legislation.
Some legal experts, including Katherine Franke, a law professor at Columbia University who studies religious freedom and sexual liberty, say the North Carolina statute will not hold up in court, for the same reason that Bunning ruled that Davis must issue licenses.
Government officials, Franke said, “don’t have a First Amendment right to pick and choose which parts of the job they are going to do.”
Other states, including Georgia, Minnesota, Oklahoma, South Carolina and Texas, this year considered passing religious-exemption laws targeted to public officials but failed.
Religious conservatives say they expect similar measures to be proposed as state legislatures reconvene in the coming months.
Other states are trying to tackle religious objections in other ways. In Alabama, where probate judges in 13 of 67 counties are, like Davis, declining to issue marriage licenses to anyone, state Sen. Greg Albritton, a Republican, said some of those judges were “preparing to go to jail” if ordered, as Davis was, to issue same-sex marriage licenses.
When the Legislature convenes a special session this week, Albritton said, he intends to reintroduce legislation requiring couples to draft their own marriage contracts, which the state would simply record, putting Alabama out of the business of issuing marriage licenses.