Divided states: Kentucky clerk case spotlights gaps in legislature and opinions

The case of a Kentucky clerk has highlighted a divide in America’s attitude to same sex marriage despite the Supreme Court ruling. Proponents of both sides are speaking of discrimination, with the state’s legal system seeming unprepared for the precedent.

On the week that Rowen County Clerk Kim Davis was found guilty of contempt of court and jailed after holding out from issuing marriage licenses based on her religious beliefs, a Reuters/Ipsos US opinion poll showed that “49.2 percent of those surveyed support same-sex marriages, 36.5 percent oppose them and 14.3 percent are unsure.”

Following the Supreme Court ruling in June, Kentucky instructed county clerks to issue marriage licenses to same-sex couples. Of the 120 county clerks in the state, 57 have objected. Kim Davis of Rowan County flat-out refused to issue any marriage licenses at all, since denying them only to same-sex couples would be discrimination.

Her refusal made her top story in American media and a target for ridicule in social media.

“Kim Davis is a prisoner of conscience denied in the land of the free. She has been charged with a contempt of a court order and has been put in jail until she chooses to violate her conscience and her convictions and her religious beliefs,” Harry Mihet, one of Davis’ lawyers told RT. Davis is to stay in jail until next week, hoping to be exempt from her duty based on her religious beliefs.

Meanwhile Davis’s deputies issued marriage licenses to several couples. David Moore, one Rowan County resident who has been refused his same-sex marriage certificate, told RT that he believes Davis cannot “choose to not serve minorities.”

“The injunction stated that she needed to issue marriage licenses to anyone who came into her office – she defied that,” said David Moore. ”She is a publically elected official. She is there to serve all of the public and not just specific people that she wants to serve.”

Mehit said that she wanted an opportunity to backtrack, but was not given one.“She is given a choice between jail and violating her conscience. It is no choice at all. The problem here is with the court,”he said.

The combination of same-sex couple wanting to marry and clerks with religious beliefs threw murky legislative areas into the spotlight following the Supreme Court majority 5-4 ruling in Obergefell v. Hodges in June which legalized same-sex marriage.

Several Alabama probate judges do the same thing as Davis, but in their case it may be more difficult to send them to jail because Alabama law states that the judge “ may “ issue a license, while the verb “must” is used in Kentucky.

Two other Kentucky clerks remain adamant about not issuing marriage licenses.

Davis can't be fired because she is an elected official. She can only quit her job, which she refuses to do, or be impeached by state legislators.

This is not the first time that religious beliefs conflicting with job responsibilities has led to legal woes. Only this week a Muslim flight attendant, Charee Stanley, filed a federal complaint with the Equal Employment Opportunity Commission. She claimed that she had suffered from discrimination after being disciplined for refusing to serve alcohol to airline passengers, which is against her religious beliefs.

Stanley says ExpressJet has a responsibility to accommodate her beliefs. “I don’t feel like I should have to choose between practicing my religion properly and earning a living.”

The legal situation is a little different for elected employees such as Davis, as they are exempt from Title VII in the majority of cases. However, there is a strong incentive in many states to change this.

Kim Davis’s lawyer Mihet says people should be granted a right to follow their consciences.

“In this country we have a long history of accommodating religious beliefs – even [those] of public officials,” Mihet’s lawyer said. “We do it with respect to prison wardens who do not want to participate in capital punishment, we do it with respect to soldiers who do not want to participate in combat and we do it with respect to doctors who do not wish to participate in abortion.”

Lawmakers in Kentucky are reportedly discussing the ways of accommodating Davis’s request for exemption. Two houses of Kentucky's legislature are planning special sessions to pass a law that may solve this conundrum.

Meanwhile, Davis’s lawyers are preparing an appeal.

Protests both for and against Davis’s cause have become a frequent view in front of the courthouse in Morehead, Kentucky where she is located. Although there were fewer of them on Friday compared to the crowds on Thursday when the decision was made, the conflict seems far from abating.

“There ought to be a way to figure this out. We shouldn't be pushing people out of the public square if they have deeply held views, nor should we discriminate against people, particularly, after this court ruling as it relates to sexual orientation,” said Florida Gov. Jeb Bush, one of the few politicians trying to walk the line on the matter.

In a mere matter of days, Davis became the poster face of discrimination against same sex couples, with accusations of “bigotry” mixed with all facts of her personal life, such as having hadthree husbands, were flying high.

"We don't hate these people," Davis's husband said on Friday. "That's the furthest thing from our hearts. We don't hate nobody. We just want to have the same rights that they have."