Kentucky Court Clerk Can’t Just Be Fired For Refusing Marriage Licenses

Kentucky Clerk of Court Kim Davis has been refusing marriage licenses, first to same-sex couples, then to all couples, since the Supreme Court declared that marriage is a right granted to Americans regardless of sexual orientation. Throughout her saga, which has gone from refusal, to her being sued, to her suing Kentucky’s Governor Steve Beshear, one question has arisen repeatedly: “If she won’t do her job, why don’t they fire her?”

As it turns out, it isn’t quite that simple.

Of course, there are many who support Kim Davis in her decision to deny marriage licenses to same-sex couples, citing religious freedom. There have been fears since marriage arguments began to move toward the Supreme Court that the end result would be clergy forced to perform marriages that violate their beliefs. Kim Davis, however, is not clergy, but a state employee — and churches are still free to turn away any couple they choose, for any reason, whether it be religion, race, gender, sexuality, or any other reason.

However, again, this is the right of a religious entity, not a state employee — and by refusing marriage licenses, Kim Davis is refusing to perform her duties as stated in her job description.

For this reason, the question keeps arising, in comment sections and discussion boards: “Why haven’t they just fired her, if she won’t do her job?”

The Morehead News learned the reason on Friday, speaking to the county attorney. It turns out there is no provision in the law for simply firing a County Clerk. Rather than Rowan county, the state of Kentucky would be required to take action, if Davis is to be removed from her office.

Furthermore, under state law, Rowan county can’t take any action against Davis — because they’re currently involved in litigation with her. According to SCOTUS Blog, she’s fighting to overturn multiple rulings against her — rulings that say she must issue marriage licenses, regardless of personal beliefs.

She’s asking the Supreme Court — specifically petitioning Elena Kagan — to give her an emergency ruling, permitting her to avoid issuing any marriage licenses until her current appeal is completed. (She didn’t choose Elena Kagan; Kagan is the primary recipient for requests from the Sixth District.)

However, the process that could move Davis out of office has started. While Rowan county officials have little power to directly act in the matter, the power they do have is to turn the question over to the state attorney general — and according to WKYT, this took place on Friday. Rowan county officials are asking the state attorney general to address Davis refusing marriage licenses as an official misconduct charge. If pursued to the fullest extent, this might not only result in job loss, but could involve fines and jail time.

In the meantime, Davis is arguing that she should be protected, if not in refusing only same-sex couples, then in refusing marriage licenses to all couples — because, she says, it isn’t discrimination, and does no harm, since there are other locations within 30 miles where marriage licenses can be obtained.

[Photo by: Mark Wilson/Getty Images]