The Kim Davis Saga: The Ineffective Employee

Making the life-changing decision to marry another person is a long and difficult process. You first have to participate in the dating scene, which often involves sifting through a lot of lemons before you find someone with whom you are even remotely compatible. If you are lucky, you may finally find a person with whom you actually enjoy spending your time and is in your similar stage of life. You then have to determine if this person is the one person out of the seven billion people on earth with whom you want to spend all of your time – for the rest of your life. As if all of this is not hard enough, the other person has to agree…to everything.

It actually happens. The two of you have decided to make the ultimate commitment. You are ready for your wedding, and you go to check off the last thing on your list: the marriage license.

Then, you meet Kim Davis – and everything comes crashing to a halt. At least, that is what happened for two heterosexual couples and two homosexual couples in Rowan County, Kentucky this past summer.

Kim Davis had the power to ruin the “big day” for these four couples because she is the county clerk for Rowan County, Kentucky. In Kentucky, the county clerk handles the clerical duties of the court, which include issuing licenses for hunting, fishing, and marriages. For marriage licenses, her office issues and signs the license for all legally qualified applicants.

Here, when eligible applicants went to the clerk’s office in Rowan County to obtain their marriage license, Davis simply refused to do the job that she was elected – and paid by taxpayers – to perform. Davis unilaterally decided that she would not issue any marriage licenses at all.

In denying these marriage licenses, Kim Davis was making her feeble protest against the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). In Obergefell, the Supreme Court found that all adult couples, regardless of their sexual orientation, have a fundamental right to marriage guaranteed by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Davis was also, in effect, protesting Kentucky Governor Steven Beshear’s post-Obergefell directive ordering Kentucky county clerks to issue marriage licenses to all qualified couples in conformity with the Supreme Court’s decision. In the directive, Governor Beshear acknowledged: “Neither your oath nor the Supreme Court dictates what you must believe. But as elected officials, they do prescribe how we must act.” Unfortunately, Davis chose to defy both the highest Court in the land and the direct orders from the chief executive of her state.

The couples that were denied licenses sued Davis in federal court and, not surprisingly, won. Judge David L. Bunning, a United States federal judge for the Eastern District of Kentucky, found in favor of the couples’ request for a preliminary injunction. Judge Bunning held that the plaintiffs’ fundamental right to marry outweighed Davis’ meritless claims under the First Amendment and Kentucky’s version of the Religious Freedom Restoration Act. Judge Bunning astutely pointed out that:

“Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions. Davis is certainly free to disagree with the Court’s opinion, as many Americans likely do, but that does not excuse her from complying with it. To hold otherwise would set a dangerous precedent.”

Judge Bunning granted the couples’ request to preliminarily enjoin Kim Davis, in her capacity as Rowan County Clerk, from applying her “no marriage licenses” policy to future marriage requests.

Davis’s request to stay the ruling pending appeal was denied by the District Court of the Eastern District of Kentucky and the Sixth Circuit Court of Appeals. Both courts determined that Davis’s appeal was meritless. Davis’s appeal to the United States Supreme Court was also denied in a one-line unsigned order.

The day after the Supreme Court denied Davis’s request for a stay, the couples went back to the Rowan County Clerk’s Office to obtain their marriage licenses. However, despite every judge finding against her, Kim Davis still refused to issue the licenses. Davis said that she was acting “under God’s authority.”

In response, Judge Bunning ordered Kim Davis into custody and held her in indirect civil contempt for her failure to comply with his Order. Davis was released on September 8, 2015 after Davis’s deputy clerks issued the plaintiffs marriage licenses. As a condition of release, Judge Bunning ordered Davis not to interfere in any way with eligible couples receiving marriage licenses from the Rowan County Clerk’s Office.

Kim Davis returned to her post as County Clerk on Monday, September 14. If she chooses again not to comply with the court’s order, Judge Bunning has the power to charge her with civil contempt again. Alternatively, criminal contempt proceedings could be initiated against Davis for her failure to comply with the Court’s order.

But, here is the problem with all of this: you shouldn’t need an order from a federal court – or the United States Supreme Court – to do your job. Kim Davis’s job description requires that she issue marriage licenses to all eligible couples, and the law states that same-sex couples are eligible. This should not be a civil law or criminal law issue – this should be an employment issue. Plain and simple: Kim Davis should no longer be the County Clerk for Rowan County because she is unwilling to do her job as required by law.

Unfortunately, Kim Davis cannot be fired. As an elected Kentucky county clerk, Davis can only be removed from her position if the Kentucky General Assembly impeaches her or if she resigns. Even Governor Beshear cannot unilaterally fire Davis. Regrettably for the people of Rowan County, the General Assembly does not meet again until January 2016, and Kim Davis has no interest in resigning. Therefore, the citizens of Rowan County will have to watch their hard-earned tax money pay the salary of their ineffective County Clerk for at least another four months.

While Kim Davis’s story highlights unfortunate and embarrassing social, prejudicial, and discriminatory opinions of some of the American populace, it also emphasizes problems in our governmental structure. Just like anyone else, elected officials should be fired if they cannot do their job and uphold the constitution of the United States. It should not require an order from the Supreme Court of the United States to force government employees to do their jobs. Similarly, it should not take a federal case for a couple to obtain a marriage license from their county – planning a wedding is hard enough.

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