After spending six days in jail for her refusal to authorize marriage licenses to same-sex couples, Davis was released by U.S. District Judge David Bunning with the stipulation that she could not “interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.” This week, the ACLU filed suit against Davis over changes she has made to marriage licenses. A deputy clerk has been issuing the licenses, but Davis removed her name and the name of her office. The ACLU claims the alterations treat same-sex couples as second-class citizens and wants the court to enforce the return of the same licenses used across Kentucky.
Western Michigan University Cooley Law School professors offer various opinions regarding the lawsuit filed against Rowan County, Kentucky Clerk Kim Davis by the American Civil Liberties Union.
WMU-Cooley Constitutional Law Professor Michael McDaniel believes Davis’ actions are in violation of her oath of office. “Article VI, Sec.1, clause 3, of the U.S. Constitution states ‘… all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…’ and as an elected official of the executive branch of local government, surely is bound by this oath. She breached that oath by interjecting her religious views into her duties as a public official, in violation of the Establishment Clause of the First Amendment.”
“I understood the ‘accommodation’ to solve the ‘problem’ was to allow Davis to remove her name from marriage licenses,” stated WMU-Cooley Professor Gerald Fisher. “As far as I know, we do not yet have good legal ground for concluding that her actions to date would undermine the efficacy of the license itself. Getting that point settled should be the cue for developing opinions on whether Davis should be punished.”
WMU-Cooley Constitutional Law Professor Brendan Beery said, “The Kim Davis story illuminates widespread misunderstanding about the difference between a citizen and a state official, about the power of courts generally, and about the fact that the Constitution is the law.”
Professor Emily Horvath explained that “When someone is elected to public office and carries out the duties of their office, they are no longer a private individual. They are, in fact, the embodiment of the government when they are acting in their official capacity. Therefore, they are required to follow the Constitution as it is the ‘law of the land.’ The Constitution has been interpreted to prohibit states from denying marriage licenses to same-sex couples. Ms. Davis’ individual opinion cannot supplant the opinion of five Supreme Court Justices, and the use of her office to enforce her individual opinion is, quite frankly, an abuse of power.”
“Civil disobedience has had a long and respected history in the United States, however, even Thoreau went to jail,” said Professor Devin Schindler. “Kim Davis took an oath to office, which she is now violating. Like Thoreau, Davis must pay the consequences of her decision.”