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U.S. Attorney: It is time for Davis and the county to follow the law - The Trail Blazer: Life & Arts

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U.S. Attorney: It is time for Davis and the county to follow the law

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Posted: Wednesday, September 2, 2015 6:33 pm

Frankfort – The heat on Rowan County Clerk Kim Davis rose a few more degrees Wednesday afternoon when a U.S. Attorney expressed “grave concerns” about her refusal to issue marriage licenses in the face of a federal court order.

Davis is scheduled to appear before federal Judge David Bunning on Thursday along with all her deputy clerks after a stay expired Monday on Bunning’s order that she must issue marriage licenses regardless of her religious beliefs after the U.S. Supreme Court invalidated prohibitions on same-sex marriages.

Davis had petitioned the U.S. Supreme Court to stay Bunning’s order but the court declined.

But even as the Kentucky’s top two state lawmakers were telling reporters they would seek a legislative remedy for Davis and other county clerks who object to issuing marriage licenses to same-sex couples, Kerry B. Harvey, U.S. Attorney for the Eastern District of Kentucky, said it’s time for Davis “to follow the law.”

“The federal district court has ordered that Rowan County issue licenses to all couples, whether of the same sex or opposite sexes, who are entitled under Kentucky law and the U.S. Constitution to get married,” Harvey said in the written statement.

“We have grave concerns about the reported failure to comply with the court’s order,” Harvey continued. “Government officials are free to disagree with the law, but not disobey it. The County Clerk has presented her position through the federal court system, all of the way to the U.S. Supreme Court. It is time for the Clerk and the County to follow the law.”

County clerks hold constitutional offices in Kentucky and they can be removed only by impeachment by the General Assembly which given Kentucky’s political climate is unlikely. But Harvey’s statement implies federal authorities may act if Davis continues to defy a federal court order.

Davis has said her deeply held religious beliefs will not allow her to sign marriage certificates issued to same-sex couples and claims she is protected from having to do so by the First Amendment. Two other clerks – in Adair and Whitely counties – also object to issuing licenses to same-sex couples but only Davis has pursued a remedy through the courts.

Several county clerks, however, have called on Gov. Steve Beshear either to call a special session to address the problem or issue an executive order removing the requirement that clerks’ affix their signatures to the licenses. Beshear has declined saying lawmakers can address the issue when the General Assembly reconvenes in January.

Senate President Robert Stivers, R-Manchester, and House Speaker Greg Stumbo, D-Prestonsburg, said Wednesday they anticipate legislative action in January. They were apparently unaware of Harvey’s statement at the time they spoke to reporters.

But a short time later, Stivers’ spokesman sent out a press release indicating Stivers had filed a friend of the court brief asking Bunning “withhold or temper his ruling in this case until the General Assembly has an opportunity to establish new frameworks under Kentucky law.”

Stivers and Stumbo are sympathetic to the concerns of the clerks and say they support a move to change Kentucky’s marriage licenses to a form which would be signed by the official solemnizing the marriage and then be recorded in the clerk’s office. But the clerk would not be required to issue or sign the license.

Both have called on Beshear to call a special session but Beshear said he sees “no need to spend hundreds of thousands of dollars of taxpayers’ money calling a special session of the General Assembly when 117 of 120 county clerks are doing their jobs.”

Neither Stumbo nor Stivers expects Beshear at this point to call a special session. Stivers also believes Beshear could solve the problem through an executive order.

Beshear disagrees.

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

Wednesday both Stumbo and Stivers said there are issues larger than who signs the license. Entire sections of Kentucky law no longer conform to the law after the Supreme Court ruling.

Those sections, the two said, govern such things as property distribution after death, lines of descent, domestic violence and adoption.

The controversy may also affect the current governor’s race. Democratic nominee, Attorney General Jack Conway, declined to oppose an earlier federal court order striking down Kentucky laws banning same sex marriages. His Republican opponent, Matt Bevin, has accused Conway and Beshear of “not doing their jobs” by fighting the federal courts.

Harvey’s statement might imply federal enforcement action, something Conway probably would welcome.

Ronnie Ellis writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.

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