MOREHEAD, Ky. » The Supreme Court on Monday ruled against the Kentucky county clerk who has refused to issue same-sex marriage licenses, and the clerk will arrive at work Tuesday morning to face her moment of truth.
Rowan County Clerk Kim Davis will have to choose whether to issue marriage licenses, defying her Christian conviction, or continue to refuse them, defying a federal judge who could pummel her with fines or order that she be hauled off to jail.
"She’s going to have to think and pray about her decision overnight. She certainly understands the consequences either way," Mat Staver, founder of the law firm representing Davis, said on Monday, hours before a court-ordered delay in the case expired. "She’ll report to work tomorrow, and face whatever she has to face."
A line of couples, turned away by her office again and again in the two months since the U.S. Supreme Court legalized gay marriage across the nation, plan to meet her at the courthouse door.
"Wow, wow, wow, I can’t believe it, we might finally be able to get a license tomorrow," April Miller said Monday night, shortly after the court’s decision. She has been denied twice to marry her partner of more than a decade.
Davis stopped issuing all marriage licenses in the days after the landmark decision. Two gay couples and two straight couples sued her, arguing that she must fulfill her duties as an elected official despite her personal religious faith. A federal judge ordered her to issue the licenses, and an appeals court upheld that decision. Her lawyers with the Liberty Counsel filed a last-ditch appeal to the Supreme Court on Friday, asking that they grant her "asylum for her conscience."
Justice Elena Kagan, who oversees the 6th district, referred Davis’ request to the full court, which denied the stay without comment. Kagan joined the majority in June when the court legalized gay marriage across the nation.
If Davis continues to turn them away, the couples’ attorneys can ask a judge to hold her in contempt of court, which can carry steep fines or jail time.
Dan Canon, an attorney representing the couples, said he hopes Davis will simply hand his clients licenses on Tuesday, and the controversy will end. Davis behind bars is not an outcome they are hoping for, he said.
"But if she continues to defy the court’s order, we cannot let that continue unaddressed," he said Monday night. "It all depends on what happens tomorrow."
Meanwhile, a couple that had been turned away went to Rowan County Attorney Cecil Watkins to ask that she be charged with official misconduct, a misdemeanor defined by state law as a public official who "refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office." The crime is punishable by up to a year in jail.
Watkins cited a conflict of interest and forwarded the complaint to Kentucky Attorney General Jack Conway, whose office will decide whether to appoint a special prosecutor, generally a county attorney from a surrounding jurisdiction, who would decide whether to file charges.
As the clock wound down for Davis on Monday, the tension intensified between dueling groups of protesters outside her office window on the courthouse lawn.
Hexie Mefford has stood on the lawn waving a flag nearly every day for more than two months. The flag is fashioned after Old Glory, but with a rainbow instead of the red and white bars.
Mike Reynolds, protesting in Davis’ defense, shouted at her that he found the flag offensive: He is an Army veteran, he said, and they had desecrated the American flag. The two groups roared at each other. Davis’ supporters called on the activists to repent; the activists countered that their God loves all.
It was a marked difference from the cordial protests that unfolded there every day since Davis declared she would issue no licenses.
Rachelle Bombe has sat there every day, wearing rainbow colors and carrying signs that demand marriage equality. One particularly hot day, Davis, the woman she was there to protest against, worried Bombe would get overheated and offered her a cold drink. In turn, Bombe said she’s checked in on Davis, whose lawyer says she’s received death threats and hate mail, to make sure she’s holding up despite the difficult circumstances.
"She’s a very nice lady, I like her a lot," Bombe said of Davis. "We’re on the opposite sides of this, but it’s not personal."
On Monday, Davis’ supporters stood on the grass and sang "I am a Child of God."
The marriage equality activists chimed in after each refrain: "So are we."