U.S. Attorney says Kim Davis should comply

The top federal prosecutor in Eastern Kentucky says it is time for Rowan County Clerk Kim Davis “to follow the law.”

In an unusual statement in a case in which his office is not involved, U.S. Attorney Kerry Harvey said Wednesday that “government officials are free to disagree with the law, but not disobey it.”

Harvey said that Davis, who he doesn’t name in the statement, has presented her position “through the federal court system, all the way to the U.S. Supreme Court,” and has not prevailed.

Attorneys not involved with the case said it was unusual for a U.S. attorney to speak out on a case that doesn't involve his office. But Professor Carl Tobias of Richmond University law school said U.S. attorneys are charged with upholding the law and have a "vested interest in having federal court litigants comply with court orders."

Kerry wouldn't elaborate on the statement.

In other developments Wednesday, lawyers for Davis said in a court filing that she should not be found in contempt of court for refusing to issue marriage licenses to same-sex couples because lesser measures could achieve the same goal.

Those include authorizing the state to issue marriage licenses or allowing someone other than the clerk to sign them.

Davis has said she cannot endorse or promote same-sex marriage because it conflicts with her religious beliefs.

Attorneys for Kim Davis also filed an emergency motion Wednesday for an injunction to block Gov. Steve Beshear's order for clerks to issue licenses to same-sex couples.

The motion asks U.S. District Judge David Bunning to enjoin enforcement of Beshear's order while it is on appeal to the U.S. 6th Circuit Court of Appeals.

A spokeswoman for Liberty Counsel, the Orlando-based group that represents Davis, could not immediately explain the intent of the motion or whether it is designed to avert a contempt hearing set for Thursday, at which Bunning could jail or fine Davis for failing to issue marriage licenses.

Dan Canon, one of the lawyers for four couples who have sued Davis, said the latest filing is just a delaying tactic.

"Ms. Davis' counsel is filing everything they can think of to file at this point," he said. "They are trying to shift the blame for her inaction on to the governor."

Although the motion doesn't specifically mention the contempt hearing, Canon said "effectively they are asking for a stay so she can be exempt from issuing marriage licenses."

He said "every court," including the Supreme Court, has said "they are not going to give her a stay and she really has to do her job."

Davis filed a claim against the governor saying his order violates her religious liberty as guaranteed under the state and federal constitutions and the state religious freedom restoration act.

In the injunction motion, Davis said she wouldn't object to another county official issuing marriages licenses in Rowan, as long as they are not issued with her signature.

Reporter Andrew Wolfson can be reached at (502) 582-7189 or at awolfson@courier-journal.com