The Kentucky clerk at the center of a battle over same-sex marriage argued in a legal filing Wednesday that being held in contempt of court for refusing to issue same-sex marriage licenses would violate her right to due process and religious freedom.
In the filing Wednesday, attorneys for Davis argue that she cannot be penalized for defying the court’s order to issue marriage licenses because she is unable to comply because “it irreparably and irreversibly violates her conscience” by directing her to issue marriage licenses “bearing her name and approval” to gay couples.
If the court holds her in contempt, her attorneys argue, it would be violating her right to due process.
Davis “has asserted individual rights that demand procedural safeguards and an impartial hearing,” the filing said. “That full hearing has been effectively denied by this Court, and entering contempt without that hearing will only compound that prior error.”
The filing was made in response to a request by the American Civil Liberties Union that Davis be held in contempt of court.
“Davis’s duty as a public official is to enforce civil law, not her own personal religious views,” the ACLU said Tuesday. “A court has ruled that, under the Constitution, she must do her job now, and, as we all learned in civics class, the rule of law means that she cannot flout the court’s order with impunity.”
“We’ve asked the court to impose steep monetary fines on Davis to induce her to comply with the injunction and issue marriage licenses to local couples,” the organization said.
On Tuesday, Davis was locked in tense exchanges with couples who sought marriage licenses after the Supreme Court rejected her request to be excused from an order to issue marriage licenses.
In defiance of that order, Davis rejected couples seeking marriage licenses at the courthouse in Morehead, Ky.
“Under whose authority?” someone demanded at the courthouse Tuesday.
“Under God’s authority,” Davis said.
Davis’s attorneys have also argued that holding Davis in contempt would improperly intrude on state affairs and it violates her right to due process and an impartial trial.
“Davis has not been afforded all of the requisite constitutional protections for those facing criminal allegations and she therefore specifically demands herein and does not waive any and all rights of those accused of crimes, including but not limited to her right to a jury trial,” they argued.
A federal judge will decide whether Davis will be held in contempt during a hearing at 11 a.m. Thursday.