Why Kentucky Clerk Kim Davis Wasn’t Fired

By Jennifer Saltz Bullock

For the past several weeks, the country has been enthralled by the controversy surrounding Rowan County, Kentucky Clerk Kim Davis,who spent five days in jail after she refused to comply with a federal court’s directive to issue marriage licenses to same-sex couples.

Davis, an Apostolic Christian, says that issuing marriage licenses to same-sex couples would violate her conscience and “is a Heaven or Hell decision.”

Here’s the rub – Kentucky law requires the issuance of marriage licenses under the authority of the county clerk, so Davis’ deputy clerks could not issue the licenses. After the Supreme Court’s decision in Obergefell, in order to avoid issuing marriage licenses to same-sex couples, Davis refused to issue any marriage licenses at all. After being turned away at the Rowan County Clerk’s office and told to “seek a marriage license in another county,” a same-sex couple paired with another same-sex couple, two opposite-sex couples and the ACLU to file suit against Davis and Rowan County.

A judge found in the couples’ favor and ordered Davis to issue the marriage licenses. She refused and was jailed for contempt.

So why was Davis jailed and not simply fired? As County Clerk, Kim Davis is an elected official who took an oath to fulfill her duties prescribed by law. Davis was specifically ordered by the Court in the ACLU lawsuit to stop refusing to issue marriage licenses. She chose not to comply and was found in contempt of Court. But why was she jailed and not fired for refusing to perform her job?

As an elected official, Davis can’t be fired and would have to be impeached by the state legislature to be removed from office. She could have resigned (in fact, Kentucky Governor Beshear suggested that any county clerk whose personal convictions interfered with the performance of elected duties in issuing marriage licenses should take the “honorable course” and “resign and let someone else step in”) but chose not to.

While Davis’ case involves circumstances unique to elected officials in an “I’m-the-only-one-who-can-perform-this-job-function” position, her steadfastness in refusing to perform what could be considered an essential function of her job reminds us that there are circumstances in private employment where a religious objection to a job task may need to be accommodated under Title VII.

Title VII applies to private and public employers and protects employees against religious discrimination. While elected officials (like Davis) are expressly excluded from the protections of Title VII, all covered employers are required to make reasonable accommodations where an employee’s sincerely held religious belief or practice conflicts with a work requirement unless an accommodation would impose an undue hardship on the employer’s business operations.

When we think of religious accommodations under Title VII, we typically think of employees who have no problem performing their job but based on religious observances, cannot work on certain days of the week. Yet, the religious accommodation requirement also applies to employees whose sincerely held religious beliefs prevent them from performing one or more of their job duties. While transferring some of an employee’s job duties to another employee may be a reasonable accommodation, it may also impose an undue hardship on the employer if there are no other employees available to perform the duties at issue.

In Davis’ case, the Court analyzed Davis’ religious objections under the First Amendment (not under Title VII) and found that “her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.” If you have an employee who objects to performing his or her job on religious grounds, consider consulting legal counsel who can help guide you through your obligations under the law.

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