Kim Davis and the law: Q&A in clerk standoff

Q. Why hasn’t Kim Davis been fired for refusing to issue marriage licenses and defying court orders?

A. She is an elected official and can only be removed from office for impeachment.

How would she be impeached?

The Kentucky House of Representatives would have to charge her with an impeachable offense and the Senate would then try her.

Is that likely?

The Kentucky Equality Federation, a gay rights group, has called for Gov. Steve Beshear to call a special session of the General Assembly to pursue impeachment. But Beshear, citing costs, has already declined to convene a special session to consider emergency legislation that would accommodate Davis and other clerks by having state government issue marriage licenses. Also, Bluegrass Polls show most Kentucky voters oppose gay marriage and support accommodating Davis.

“The legislature has placed the authority to issue marriage licenses squarely on county clerks by statute, and I have no legal authority to relieve her of her statutory duty by executive order or to remove her from office,” Beshear said in a statement Tuesday.

Can Davis be charged with a crime?

After being denied a license four times, a gay couple has asked the Rowan County attorney to charge her with official misconduct, a misdemeanor punishable by up to a year in jail. But citing a conflict of interest — he is defending the county in suits naming Davis — he referred the request to the attorney general’s office, which is deciding whether to appoint a special prosecutor.

What happens next?

The two gay and straight couples who sued Davis have asked U.S. District Judge David Bunning to find her in contempt of court. A hearing is set for 11 a.m. Thursday in Ashland.

What punishment could she get for that?

Bunning could jail or fine her, but the plaintiffs are seeking only monetary penalties, apparently to avoid engendering sympathy for her in jail. Bunning could order her to pay the fines out of her own pocket, rather than with taxpaper money.

Does Davis have any options left?

She can still pursue her appeal in the 6th Circuit Court of Appeals, but her bids to delay compliance ran out on Monday night when the Supreme Court denied her a stay.

Could local officials try to remove her?

Kentucky law allows a commonwealth’s attorney to indict county judges-executives, justices of the peace, sheriffs, coroners, surveyors, jailers, county attorneys and constables for malfeasance in office or willful neglect in the discharge of official duties, for which they can be fined up to $1,000 and removed from office upon conviction. But for some reason lost to history, the statute doesn’t include county clerks.

What are Davis’ grounds for refusing to comply with court orders?

She says that to issue a marriage license to same-sex couples, on which her name would be signed, conflicts with God’s definition of marriage and would violate her conscience. She says her religious liberty should be protected under the Kentucky and U.S. Constitutions and the Kentucky Religious Freedom Act.

Sources: Kentucky Constitution and KRS. University of Kentucky law professors Allison Connelly and Scott Bauries.

In: courierjournal