Marriage equality fight turns to clerks, probate judges who refuse licenses to same-sex couples

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Protesters gather on the front lawn of the Rowan County Judicial Center, Tuesday, June 30, 2015, in Morehead, Ky. The protest was being held against Rowan County Clerk Kim Davis, who, due to the ruling of the Supreme Court of the United States and her own religious beliefs, has refused to issue any marriage licenses in the county. Timothy D. Easley, AP

Protesters gather on the front lawn of the Rowan County Judicial Center, Tuesday, June 30, 2015, in Morehead, Ky. The protest was being held against Rowan County Clerk Kim Davis, who, due to the ruling of the Supreme Court of the United States and her own religious beliefs, has refused to issue any marriage licenses in the county.

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Legal experts are dubious that religious freedom arguments will protect public officials who not only refuse to participate due to their own beliefs, but also decline to make accommodations so that others who don’t object can serve the public instead.

Two things can happen if a Kentucky clerk won’t issue a marriage license to a same-sex couple: They can resign, or go to jail, said Sam Marcosson, a constitutional law professor at the Louis D. Brandeis School of Law at the University of Louisville.

“If it means that you simply cannot fulfill your duties because of your religious beliefs, what is required of you is that you can no longer hold that office,” Marcosson said. “That applies to a judge, that applies to a senator, that applies to anyone who holds public office.”

Clerks and probate judges hold the keys to marriage in counties around the country, and in many rural areas, there are few alternatives for hundreds of miles. Couples turned away could seek a court order, and a clerk who still refuses to issue a license could be jailed for contempt, Marcosson said.

They also risk criminal official misconduct charges, said Warren County Attorney Ann Milliken, president of the Kentucky County Attorneys Association. The misdemeanor, punishable by up to a year in jail, is committed when a public servant “refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office.”

Casey Davis, the clerk in Casey County, Kentucky, says he won’t resign and he’d rather go to jail than issue a marriage license to a same-sex couple. None have yet come in to get one, he said.

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After the Supreme Court declared that marriage is a constitutional right equally held by all Americans, clerks in Arkansas and Mississippi resigned Tuesday rather than be forced to sign the licenses of gays and lesbians. Linda Barnette, the circuit clerk in Grenada County, Mississippi, for 24 years, wrote in her resignation letter that she is a “follower of Christ” and that she chooses “to obey God rather than man.”

Other reluctant Kentucky clerks gave up the fight Tuesday.

Lawrence County Clerk Chris Jobe, who also serves as president of the Kentucky County Clerks Association, told The Courier-Journal in Louisville that he would resume issuing licenses for fear of being removed from office. Several other Kentucky clerks made similar concessions.

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