BP_blog
Kentucky Clerk Kim Davis Jailed: Christian Thought Leaders Respond


kim-davis
Kim Davis
On September 3, Judge David L. Bunning jailed Kim Davis, Kentucky's Rowan County Clerk who refused to issue same-sex "marriage" licenses. Davis, an elected official who can only be removed from office by the State legislature, claims issuing marriage licenses to same-sex couples per the recent Supreme Court ruling would violate her religious liberty.

The case may represent the first time a Christian has been jailed in America over the redefintion of marriage, but because Davis is a government employee, it's a complicated situation with many angles. Christians are divided on Davis' actions, and the response by authorities. At issue are questions about the nature of religious liberty, the duty of Christians in government, and what godly civil disobedience looks like. We've asked for opinions from top Christian thinkers and gathered them here. At the end, we'll link to some of the best articles as they're released, and we'll be adding new entries here as we receive them, so continue checking back.

Hunter Baker
Union University

I have made the claim that Kim Davis (a county clerk) is differently situated from, say, Christian bakers, florists, photographers, etc. My reasoning is that private citizens are not obligated to recognize constitutional rights in their personal affairs.

For example, I do not have to do business with someone who uses their freedom of speech to say things I find abhorrent. Likewise, I would argue that Christian business owners should not have to perform services that they believe violate their religious beliefs. It should be enough that they do not interfere with the rights of those with whom they disagree.
Remember that it was not the Constitution, but the Civil Rights Act of 1964 that regulated private business. The Civil Rights Act is so intrusive, it is justifiable primarily as an answer to an oppressive system of southern segregation similar to Apartheid. As we have no such system in place to harass or otherwise oppress gay citizens, the government goes too far in forcing religious objectors who are private persons (and private business owners) to conform.

Kim Davis's office is obligated to perform the state function of issuing wedding certificates. She disagrees that marriage can exist between two people of the same sex. I agree with her. However, the state of Kentucky has little choice other than to respect the ruling of the Supreme Court. The ideal circumstance would be for the state to accommodate her, but I believe that her case is less strong than it would be if she were a private citizen. She should probably resign while making her grounds for opposing the court clear.

Hunter Baker, J.D., Ph.D. is an associate professor of political science at Union University and the author of three books on religion and politics.

*******

Francis J. Beckwith
Baylor University

Thoughts from a Kentucky Jail:

“I am the king's true subject, and I pray for him and all the realm. I do none harm. I say none harm. I think none harm. And if this be not enough to keep a man alive, then in good faith, I long not to live. Nevertheless, it is not for the Supremacy that you have sought my blood, but because I would not bend to the marriage!” – St. Thomas More (from A Man For All Seasons)

“One has not only a legal, but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.” – Martin Luther King, Jr., A Letter From a Birmingham Jail

“To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.” – Kim Davis

Francis J. Beckwith, Professor of Philosophy & Church-State Studies, Baylor University

*******

Michael L. Brown
FIRE School of Ministry

There is a healthy debate taking place among both believers and non-believers concerning the rightness of Kim Davis’s actions. Should she simply have resigned if, in good conscience, she could not issue those certificates? Does she have any legal, moral, or constitutional ground on which to stand?

That is a legitimate debate, and it is one that is sure to continue.

But what cannot be debated is that the national outrage against Kim Davis has nothing to do with her refusing to obey the law and everything to do with her Christian beliefs. Had she found herself on the opposite end of the conflict and had she stood for “gay rights,” refusing to obey a law that she felt discriminated against them, she would be praised from coast to coast.

Yesterday I tweeted, “It's interesting that gay activists who praised SF mayor Gavin Newsom for illegally issuing marriage licenses now vilify Kim Davis.”

Hector Alvarez (@eltoritolociito) responded, “@DrMichaelLBrown how is it interesting? He was for marriage equality, she was an anti gay bigot who wasnt doing her job.”

Doesn’t that say it all?

Michael L. Brown, Ph.D., hosts the national radio program the Line of Fire and is president of FIRE School of Ministry. His most recent book is Outlasting the Gay Revolution: “Where Homosexual Activism Is Going and How to Turn the Tide.”

*******

Joe Carter
Acton Institute

The Kim Davis incident shows why the rule of law needs to be combined with the Christian concept of subsidiarity, the tenet that nothing should be done by a larger and more complex organization which can be done as well by a smaller and simpler organization. The state of Kentucky had two ways to deal with an elected official like Davis: impeachment or accommodation of her religious beliefs. Either option would have resolved the issue and established a precedent. Instead, a federal court rushed to intervene and brought in men with guns to throw the clerk in jail—and resolved nothing. Americans need to decide how much longer we’re going to allow judges to circumvent the will of the people.

Joe Carter is a senior editor of the Acton Institute.

*******

Maggie Gallagher
American Principles in Action

A federal judge just ordered jail time for Kim Davis, the Kentucky clerk who has refused to sign same-sex marriage licenses.

I acknowledge court orders cannot just be flouted, but you have to admire someone willing to go to jail for her beliefs.

There is no good reason we reached this sad pass. Many state legislatures have prevented this kind of escalation by putting the duty to issue licenses on the office, not the individual clerk. That is a win-win that hurts nobody.

If Kim Davis languishes in jail, it’s because Democrats want her there as a symbol of their power to redefine Christianity as hatred and bigotry. And because the Republicans do not have the guts to contest it.

Maggie Gallagher is a senior fellow at American Principles in Action.

*******

Shane Morris
Colson Center for Christian Worldview

In light of Kim Davis’ jailing, some Christians are offering the scenario of a Muslim government official who refuses to sell liquor licenses, because it violates his religion. "How is that different from what Kim Davis did?" they ask. It's different because selling liquor isn't wrong. Certifying same-sex sexual partnerships as "marriages" is.

There is a Truth, and there is a Law higher than the Supreme Court. How many Americans today would fault a 1920s county clerk who refused to license sterilization clinics after the Supreme Court decision Buck v. Bell? Eugenics was “the law of the land,” but would we not consider any official a hero for using what power she had to obstruct that unjust and immoral law? Where would all of the Christians be who are today saying, "It's the law. She should just do her job or quit!"? I suspect they would feel differently. Because, they might say, homosexual marriage isn't like eugenics. It doesn't hurt anyone.

Really?

The Muslim liquor license analogy fails because we do and should discriminate when it comes to right and wrong, and natural law, which supersede the power of government, contrary to what Judge David Bunning says. This is the very concept that inspired the American Revolution, and a Civil Rights activist generations later from a Birmingham jail cell: There is a Law above the law. And any manmade law in contradiction to it is “no law at all.”

A Christian woman is in jail for upholding the definition of marriage set in place at creation against one just invented by Anthony Kennedy. I don't feel comfortable telling her she's wrong, or that she should just do her job. She's standing on the side of reality, of natural law, and God, against a depraved fantasy. Where are we standing?

Shane Morris is Assistant Editor for BreakPoint.

*******

Karen Swallow Prior
Liberty University

Civil disobedience has an honorable and important place in America, going back to its very foundation. Whether or not Kim Davis should or should not have complied with the law is not the most important question facing Christians in this controversy. Nor is gay marriage the central question to this particular debate. The crucial matter the church is facing, as demonstrated by this conflict between one individual believer and the state, concerns the kind of relationship we as a church can demand--or expect--with the government in a post-Christian era. It will not be an easy question to answer, but it's the one before us today.

Karen Swallow Prior, PhD, is Professor of English and Modern Languages at Liberty University


******

Warren Cole Smith
WORLD Magazine

Dr. King Speaks on Behalf of Kim Davis

I would not argue that the legal case of Kim Davis is strong. She is, or appears to be, breaking the law. But I would also argue that just because she is breaking the law doesn’t mean she is wrong, or that she is undermining the rule of law. She is exercising civil disobedience in a profound and honorable way.

If you doubt my assertion, I commend to you Martin Luther King. He is well-known for his “Letter from a Birmingham Jail,” but he is less well-known for this letter from an Albany, Georgia, jail. Police arrested King and others during a peaceful protest there. He had the choice of paying a $178 fine or spending 45 days in jail. He could well afford the fine, but he chose the jail time. He wrote this in response to his critics:

“Some of our critics complain that our non-violent method fosters disrespect for the law and encourages ‘lawlessness.’ Nothing could be further from the truth. Civil disobedience concludes that the non-violent resistor in the face of unjust and/or immoral law cannot in all good conscience obey that law. His decision to break that law and willingly pay the penalty evidences the highest respect for the law. … Thus it is, when the non-violent resistor refuses to cooperate with a law that is out of harmony with the laws of God and the laws of morality, he must break the law—but in so doing, he practices civil disobedience and accepts the penalty, thereby practicing moral obedience and transforms the jail into a haven of liberty and freedom.”

To Dr. King, I say, “Amen.” To Kim Davis, I say, “May God bless and keep you safe during this time of trial. And may God use you to awaken the moral imagination of our nation.”

Warren Cole Smith, Vice President, WORLD Magazine

******

R. R. Reno
First Things

I understand the importance of the rule of law. Laws can be imperfect, even unjust. But we can’t have a system where every individual gets to exercise a veto, especially not public officials. For this reason, there’s a legitimate dimension to Judge David Bunning’s decision to put Kim Davis in prison for refusing to sign marriage licenses.

But there’s also the illegitimate aspect. The rule of law is often set aside by public officials, so why single out Davis? Last summer, the Brooklyn District Attorney Kenneth Thompson announced he would not longer prosecute those arrested for possession of small amounts of marijuana. While it’s true prosecutors can decide whether or not to bring charges in any particular case, this public announcement of a general policy amounts to a refusal to enforce the law.

The parallels to Kim Davis are pretty close. It’s Kenneth Thompson’s job to prosecute, not to formulate drug laws for New York State, just as it’s Davis’ job to sign marriage licenses, not to determine the laws of marriage. Both demure from doing their jobs, saying, “No, I won’t do that, even though the law says otherwise.”

But there the parallel ends. Thompson’s decision was cheered by progressives. Nobody called for Thompson to resign. No judge stepped in to order him to do his job. Davis? She’s in prison.

The ways in which progressives get a free pass isn’t hard to see. Imagine a New York county clerk a few years from now after the courts have found a right to polygamous marriage in the Constitution. She refuses to sign marriage licenses for men marrying second and third wives, citing her feminist commitments. She’d be championed by the New York Times. Efforts to compel her would fail, because judges would come up with legal reasons why she has a right to dissent.

Yes, the rule of law is important. But Kim Davis behind bars shows that it only applies to some people in America.

R. R. Reno is the editor of First Things.

*******

Roberto Rivera
Colson Center for Christian Worldview

As regards Mrs. Davis and the position she is taking, there are two points I want to emphasize: One, having misgivings about the position Davis has staked out and even criticizing this position is not the same thing as agreeing, much less siding, with her pro-gay-marriage critics in the media and on the internet. See Mollie Hemingway.

Two, whatever position you take, the principles your position is based on should be universally applicable. You should be willing to apply those principles even when you disagree with the position being taken. Otherwise, it's just special pleading. It's easy to invoke religious freedom when you share the convictions of the person taking the stand. But what about when it's a Muslim or a Sikh making a claim? Are you willing to apply RFRA standards in these sorts of cases?

Roberto Rivera is a Senior Fellow at the Colson Center for Christian Worldview.

*******

Carl R. Trueman
Westminster Theological Seminary

The Davis case has numerous points of interest. Her past divorces are a rhetorical gift to the proponents of gay marriage. Though they happened before she became a Christian, Christians need to understand that the church's routine acceptance of divorce within her ranks over the decades has left her weak in her public testimony on marriage. Further, the case should stimulate discussion of what a reasonable accommodation (as required under the Civil Rights Act of 1964) might look like in such a situation. “Obey or go to prison” is not the default legal position in this matter. Government and employers are required to accommodate religious objectors unless such accommodation creates undue hardship for the employer. The fact that that point does not appear to have been addressed here is perhaps the most worrying aspect of this. It is, after all, the law of the land as much as gay marriage.

Carl R Trueman, Paul Woolley Professor of Church History, Westminster Theological Seminary.

*******

Andrew Walker
Ethics and Religious Liberty Commission

The Supreme Court is where ultimate blame rests involving Kim Davis. Court rulings that are truly rooted in justice should seamlessly integrate into a state’s laws. Rulings should not circumvent the democratic process, pre-empt state action, and leave civil society in a state of fractious tumult. Unfortunately, that's what Obergefell did, and now we're seeing its disastrous effects in state jurisdictions such as Kentucky. That, and needless escalation in terms of incarceration, coupled with government inaction has brought us to the situation we’re in.

We must recognize the crucial difference between the religious liberty claims of private citizens and government officials. While government employees don’t lose their constitutional protection simply because they work for the government, an individual whose office requires them to uphold or execute the law is a separate matter than the private citizen whose conscience is infringed upon as a result of the law. It means the balancing test is different when it comes to government officials because of their roles as agents of the state. Government officials have a responsibility to carry out the law. When an official can no longer execute the laws in question due to an assault on conscience, and after all accommodating measures have been exhausted, he or she could work for change as a private citizen, engaging the democratic process in hopes of changing the questionable law.

Andrew T. Walker is Director of Policy Studies at The Ethics and Religious Liberty Commission and a doctoral student in Christian Ethics at The Southern Baptist Theological Seminary.

Portions excerpted from “Need We Jail Each Other Over Marriage Licenses?

******

A Collection of Responses from around the Web:

Ryan Anderson, Heritage Foundation, interviewed on CBN

and on CNN

The Supreme Court has held on numerous occasions that you don’t give up your religious freedom rights just because of the job you hold—even if it’s a government job. So we need to find a way to balance both the rights of the citizens of Rowan County to receive a license and the rights of the employees and civil servants in Rowan County

Joe Carter, Acton Institute Power Blog, "Explainer: The Kentucky Marriage License Controversy"

Why doesn’t the county just fire Davis instead of putting her in jail? Because Davis is an elected official, she can only be removed from office for impeachment. That would require the Kentucky House of Representatives to charge her with an impeachable offense and the Senate would then try her. Impeachment is unlikely since few citizens in Kentucky support same-sex marriage.

Rod Dreher, The American Conservative, "What Hill Do We Die on, Then?"

[T]he cause of protecting marriage in the law is lost; we religious conservatives have got to stop being so reactive, and start being proactive, preparing to play the long game. At this point, it’s not about winning the marriage fight. That’s over, and we were defeated decisively. Now, it’s all about protecting the liberty of our institutions in a post-Christian society. Cases like Kim Davis’s are all about fighting the last, lost war; engaging on that hopeless battlefield can only compromise our ability to fight effectively on the ones just ahead.

David French, National Review Online, “Kim Davis's Stand Is Right and Necessary”

The legitimacy of Davis’s protest is inseparable from the illegitimacy of the court opinion that made it necessary. And it is this very illegitimacy that means she should neither resign nor comply. Instead, she has chosen the proper response: resist.

Albert Mohler, Al Mohler.com, “’In this world you will have trouble’—Welcome to Rowan County”

During the Reformation, both Martin Luther and John Calvin affirmed what was later defined as the “doctrine of lesser magistrates” which held that the tyrannical dictates of a higher authority could be defied by a lesser government authority who acted on conscience in defense of what is right. Lutheranism even added this doctrine to its confessional basis in the Magdeburg Confession (1550).

John Mark N. Reynolds, The Saint Constantine School, "Kim Davis"

A pacifist Christian (and most Christians have never been pacifists) cannot vote for a war or participate in killing. Our majority culture generally has provided for “conscientious objectors” and not forced all those people out of all forms of government service. A Christian who thinks “swearing” is always wrong cannot take an oath even when the government commands it. The Founders of America accommodated those who would serve the state by allowing them not to “swear” an oath. The Supreme Court allowed no state, region, or territory any exemption from the Supreme Court’s morality. All parts of government must pretend that vice is equal to virtue. The rules changed while Davis was in office. National morality shifted in a day, but her own morality did not.

Eric Teetsel, Manhattan Declaration, “Is Kim Davis Doing the Right Thing?”

Jesus instructed in Matthew 22, “Therefore render to Caesar the things that are Caesar’s, and to God the things that are God’s.” For a long time, Christians in America enjoyed the blessings of life in a Democratic Republic in which cultural norms reflected the shared biblical values of the majority. Rendering unto Caesar is easier when Caesar shares your values. That has been changing for decades, and Obergefell marks a tipping point.



Articles on the BreakPoint website are the responsibility of the authors and do not necessarily represent the opinions of BreakPoint. Outside links are for informational purposes and do not necessarily imply endorsement of their content.

Comments:

Francis Beckworth / Shane Morris
I find it interesting that Professor Beckwith references St. Thomas More. Anyone who has seen “A Man For All Seasons” could not help but be impressed by his adherence to his faith and willingness to suffer the consequences for his positions. What that movie barely touches upon though was that as Chancellor of England Thomas More was a vigorous defender of the Roman Catholic Church which was in his view “the one true faith”. He pursued an aggressive policy of suppression of heresy overseeing the persecution, torture and execution of Protestants. While he may have been a model for following one’s conscience he was equally a reminder of the dangers of state sponsored religion.
Most know the history that followed. Persecution of various religious groups in England and wars between Catholic and Protestant nations in Europe were almost constant. Rebellions, reformations and restorations took place as the succession of “rightful” monarchs was disputed. One day one might be considered a true believer the next a heretic.
The Founding Fathers were, as Englishmen themselves, keenly aware of this history of religious strife. They did not wish to see such violence in their newly formed country. They sought to protect religious freedoms but also to prevent the state from imposing religion on American citizens. They were certainly almost all Christians themselves but made it a founding principle not to establish any hierarchy between different faiths or within various Christian traditions.
I doubt the Founding Fathers or the Framers of the Constitution could have envisaged a nation as diverse religiously, ethnically and racially as ours today. Yet they provided a framework of governance which has served us well into modern times. It’s not always perfect but it’s darn good.
Shane Morris’ first paragraph is a spectacular example for why all faiths need to be protected equally under the law.
“In light of Kim Davis’ jailing, some Christians are offering the scenario of a Muslim government official who refuses to sell liquor licenses, because it violates his religion.”How is that different from what Kim Davis did?" they ask. It's different because selling liquor isn't wrong. Certifying same-sex sexual partnerships as "marriages" is.”
Selling liquor isn’t wrong according to Shane. He is entitled to his opinion. For the record I am just fine with it too. However there are many “dry” towns and counties in the U.S. who apparently think differently. I would imagine the prohibition of alcohol in many of those areas is a direct result of the religious traditions in those areas. Alcohol production and sales are heavily regulated in every state and at the Federal level. That is the reason licenses are required and some clerk somewhere has to issue or decline them. If you believe a Muslim has no right to object; how about a Baptist, Methodist or another Christian whose faith tradition objects to the consumption of alcohol?
There are valid questions raised by Kim Davis’ case. Do gov’t officials lose their religious rights when they enter their workplace? What if any accommodation could or should be made? Does the state have a compelling reason in asking her to affix her name to a marriage license in the first place? If the state could issue licenses directly without anyone signing them what is the purpose of having a County Clerk? Perhaps it’s not a question of whether she should be impeached and removed from office but if that office should even exist?
Perhaps Kim Davis truly believes that signing a license for a same sex couple implies her acceptance of that marriage and this is a violation of her religious liberty. Perhaps she just doesn’t feel gay people are entitled to the same rights she has and is (ab)using the system to block them from marrying. I don’t know her heart. I can’t judge her.
I do believe that many people are arguing in favor of Christian privilege rather than true religious liberty and using this case and this woman to make their point. I hope all sides will reflect upon how issues such as these impact people of all faiths and keep true to the Founders’ vision of a nation of equality for all faiths and preference towards none.
Simpler than I first thought
Thanks to Kenny for his comments - very helpful. The thing that simplified this for me was that Kentucky state law requires employers, including the state government, to accommodate the religious beliefs of its employees if it's not too difficult, with minimum possible disruption to the employee. An easy option was available - have someone else in the office sign the licenses. Sending her to jail was an excessive exercise of power. This perspective should appeal to any law-respecting person, regardless of worldview. Ironically, the law cited in the contempt ruling was not related to the supreme court decision but was the pre-existing Kentucky law which states licenses are to be issued in the county where the female resides. So it would appear Kim Davis wasn't jailed for refusing to issue licenses to same-sex couples , but for refusing to issue them for heterosexual (or lesbian?) couples.
In Preparation for Civil Disobedience
What Stance Would I Take?
Being salt in the world was a topic of a Bible study this week. As I pondered what my stance is when considering the actions of Kim Davis as she took a stand on what she believed would compromise her Christian beliefs this past week, my thoughts kept taking me back to the idea of salt as presented in the Word. One of the things I learned about salt is the value God places on it. He commands the priests to salt the offerings before sacrificing them in the fire. The priests and their families were given “all the holy contributions that the Israelites present to the LORD as a perpetual statute. It is a perpetual covenant of salt before the LORD” (Num 18:19 HCSB) provided for them. The covenant of salt is a perpetual and eternal promise between God and His people.

As Christians when called to stand for Christ, Jesus said we are to be salt in the world. The general idea of salt is to be positive influence in the world. And as a covenant with God, it is strength and permanence. Jesus said we are to “have the qualities of salt among” us (Mk 9:50 NLT): We are called to preserve God’s plan for His creation. Made in God’s image we are called to preserve the good in the world—the right living of the eternal moral law that God provides innately in all of us.

Those who engage in the homosexual life-style have rejected “God and His design at creation” Therefore God delivered them over in the cravings of their hearts to sexual impurity, so that their bodies were degrade among themselves. They exchanged the truth of God for a lie, and worshiped and served something created instead of the Creator, who is blessed forever. Amen. [Romans1:24-25 HCSB]. The greater sin is the rejection of God’s created order: From the creation of the world His invisible attributes, that is, His eternal power and divine nature, have been clearly seen, being understood through what He has made. As a result, people are without excuse. For though they knew God, they did not glorify Him as God or show gratitude. Instead, their thinking became nonsense, and their senseless minds were darkened. [Romans 1:20-21 HCSB]

The disposition of our conscience is wired to naturally know basic moral truths. These are the moral rights that no one should be able to infringe upon–to violate or encroach upon the rights of another. The purity of God’s plan for mankind must be preserved for it is what defines these rights.

No matter if we are believers or not and because all people are made in His image, God has placed within every person His moral code. Part of the problem in the quickly eroding moral codes interpreted by the human mind, heart, and conscience is the idea of rights. The Lie promulgated by the Father of Lies creates a sense of entitlement that blinds many to truth, goodness and beauty. While these who have been blinded may say they are making human law that is for the good of society, Paul Capon says the problem is the matter of ignoring what is the basis of this goodness: they ignore God, their Creator “who is the highest Good”.

If I am going to be salt in the world, then I must not ignore God who is the highest Good. While this incident with Kim Davis is about homosexuals being given the right by the government to marry which goes against God’s plan, it is most likely only the first of many civil laws that we, as Christians, may have to stand against—be civil disobedient--to the point of going to jail, being fined, confined or other types of persecution. But if I am going to be salt in the world, it also means that I must stand with all the grace and strength God will give me so that I honor and glorify Him in the process.

Cabal, Ted, gen. ed. The Apologetics Study Bible. Nashville: Holman Bible Publishers. 2007: 1683, 1715.
Kim Davis
I don't think Kim Davis should have been put in jail, for three reasons.

1. The first reason is that she has not broken any valid existing law about issuing a marriage license. To my knowledge, the first reason has not been raised by her attorneys.

The U.S. Supreme Court held that state laws are "invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples," and that the United States Constitution “does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” Obergefell v. Hodges, 135 S.Ct. 2584, 2605 and 2607 (2015).

The only Kentucky law which actually requires or authorizes a county clerk to issue a marriage license to anyone is §402.080:

Kentucky Revised Statutes
Title 35. DOMESTIC RELATIONS
Chapter 402. MARRIAGE
Solemnization
§ 402.080. Marriage license required - Who may issue
"No marriage shall be solemnized without a license therefor. The license shall be issued by the clerk of the county in which the female resides at the time, unless the female is eighteen (18) years of age or over or a widow, and the license is issued on her application in person or by writing signed by her, in which case it may be issued by any county clerk."

After the Supreme Court's decision, no sense can be made of this law, which requires one (and only one) female party to the marriage. The way it is written, no part of it could be deleted as invalid, and still make any sense.

If two men residing in different counties in Kentucky want to apply for a license, no one can tell which county clerk is required to issue it according to §402.080. The same goes for two women residing in different counties.

The Governor's letter of June 26, 2015 to the Kentucky County Clerks did not address or give any guidance as to these issues or how the above Code section should now be applied after the Supreme Court's decision.
http://www.bgdailynews.com/letter-from-the-governor-sent-today-to-kentucky-s-county/pdf_bac90bfa-1c1d-11e5-a0c4-f3dc8326148e.html

Even before its invalidation, §402.080 can be read so as to mandate the issuance of a license by the clerk of a specific county only in cases in which a minor female party to the marriage resides in that county.

The U.S. Supreme Court did not enact a law requiring each county clerk of each State in the Union to issue marriage licenses. It rendered Kentucky's law invalid, so Kentucky no longer has a valid law requiring county clerks to issue marriage licenses until its legislature fixes it. There is no federal law of marriage licenses. The Court held that "the Fourteenth Amendment requires a State to license a marriage between two people of the same sex," but it did not prescribe the process for each State. It could be accomplished by couples mailing in applications to the State Capitol, or whatever process the State prescribes, as long as it treats same-sex couples the same as opposite-sex couples.

I think Davis' position of refusing to issue any marriage license at all is entirely consistent with Kentucky law, as invalidated by the U.S. Supreme Court. Yet her attorneys don't appear to be making this argument, but only the religious objection.

The Kentucky Senate President takes the position that "Obergefell arguably has invalidated the entire statutory scheme that controls the issuance of marriage licenses in the Commonwealth of Kentucky."
http://www.washingtonblade.com/content/files/2015/09/Ky.-Senate-president.pdf

Right now it seems that the whole state of Kentucky is just flying by the seat of its pants, until its legislature acts to change the law and bring it in compliance with the Supreme Court's ruling. They will likely backdate it to the date of the Supreme Court's decision. It appears that there is now no valid Kentucky law authorizing the issuance of a marriage license to anyone, but they are just doing it anyway. Since the law is in such a state of freeform, it seems that the judge could have crafted a decision that would allow her deputies issue the licenses, yet not have her name on the licenses.

2. There is both a federal and a Kentucky state restoration of religious freedom act.

Both require the government to use "the least restrictive means" in furthering the government's interest against a person's religious beliefs.

Kim Davis does not object to her deputies issuing a marriage license to same-sex couples, as long as her name does not appear on the license.

The legal commentator for the Washington Post, Eugene Volokh, agrees that this would be a reasonable accommodation for her under the restoration of religious freedom law. He teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law.
He gives a number of examples of how this law has been applied in the past. He says "The rule accepts the risk of slippery slopes, and counts on courts to stop the slippage."
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/

The text of the federal restoration of religious freedom act, which applies to actions by federal officials (which I presume would include the federal judge in this case) is, in part:

"42 U.S. Code § 2000bb–1 - Free exercise of religion protected

(a) In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) ExceptionGovernment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest. ...

42 U.S. Code § 2000bb–2 - Definitions

As used in this chapter—
(1) the term “government” includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity; ..."

The following is the Kentucky law, which applies to actions of Kentucky officials:

Kentucky Revised Statutes
Title 41. LAWS
Chapter 446. CONSTRUCTION OF STATUTES
Rules of Codification
Current through 2015 Ky. Acts ch. 127
§ 446.350. Prohibition upon government substantially burdening freedom of religion -- Showing of compelling governmental interest -- Description of "burden"

"Government shall not substantially burden a person's freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A "burden" shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities."

I could not find it, but Kim Davis' attorneys also said there is a Kentucky statutory exemption for county clerks who do not want, for conscience sake, to be involved in issuing hunting or fishing licenses.

3. She should not have been put in jail, because the plaintiffs who sued her, and the ACLU representing her, asked that she not be put in jail.

Besides all that, the Kentucky Attorney General was charged with defending Kentucky's marriage laws before they were overturned by the Supreme Court, but he refused to do so on account of conscience. As a result, the State of Kentucky had to pay outside counsel $195,400 to do his job. He did not lose his job or go to jail.
http://www.courier-journal.com/story/news/local/2015/05/20/cost-gay-marriagedefense/27404461/
Kim Davis
I agree with the ones who said it'should a pagan nation now. It'seems a kingdom of Jezebels and Ahabs.
Another example of how thinking secular governments can be godly is mistaken. Scum rises to the top.
Render unto Caesar in the spirit of Jesus paying taxes in Matthew 17. Only because the conquering thief would get offended and interfere with God's plan. Read Romans 13: Any action by the rulers that is not good disqualifies them. Render unto Califula. I think not.
Obey God
It is better to obey God
Kim Davis
I think if Muslim grocery workers are allowed to refuse to sell pork to customers who come through their line then neither should Kim Davis have to put her name on something that gives people the ability to do something that is against her religion. Her bosses should have provided an alternative clerk who had no issue with the law on same sex marriage.

On the other hand, I also think that since she was aware of the potential of having to do something she believes is wrong, that she should have been prepared to quit her job at the time she was approached.

I hope she is able to win the case, not sure that she will though.
When she first took her position as clerk, it was no where in her job description that she would have to violate her own moral and religious beliefs. So no, she does not deserve to be fired just because a handful of unmoral, liberal, biased so-called judges decided to shove this abomination down every American citizens throat. God will judge this country and He will judge Each person as an individual. We do well to think and respond accordingly. Regarding her divorces: Her choices were just that "her" choice. That has nothing to do with being forced to become part of someone else's abominations. "Let him without sin cast the first stone" at her. We are NONE perfect. Yet do you want to be FORCED to participate in another person's life choices? Especially in something that you firmly stand against?commend Kim Davis for standing for God's truth and for her rights