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Kim Davis ordered to jail despite 11th hour request for stay

The Kentucky county clerk appeared before a judge Thursday and was ordered to jail for defying an order to grant marriage licenses to same sex couples.

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Rowan County Clerk Kim Davis (c.) talks with protesters following her office's refusal to issue marriage licenses at the Rowan County Courthouse in Morehead, Ky., Tuesday. Although her appeal to the US Supreme Court was denied, Davis still refuses to issue marriage licenses.

Timothy D. Easley/AP

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[1:15 p.m. updateU.S. District Judge David Bunning ordered Rowan County Clerk Kim Davis to jail until she agrees to issue marriage licenses to same-sex couples.]

In an effort to stop Kim Davis from being held in contempt of court, the top Republican in the Kentucky state Senate has requested that a federal judge stay a ruling forcing the court clerk to issue marriage licenses to same-sex couples.

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State Senate President Robert Stivers filed a motion on Wednesday asking US District Judge David Bunning to give the state legislature the opportunity to pass legislation which would exempt Ms. Davis from issuing marriage licenses.

The state legislature is currently on recess and will not be in session until next year. Sen. Stivers argues that the Supreme Court ruling in Obergefell v. Hodges has fundamentally changed the definition of marriage and lawmakers need time to catch statutes up to the new legal landscape.

The motion comes ahead of a scheduled hearing Thursday in which Judge Robert Bunning could hold Davis in contempt of court and decide to levy fines or place her under arrest.

“I’m surprised she hasn’t been held in contempt yet,” Brian Bix, a constitutional law professor at the University of Minnesota, told The Christian Science Monitor’s Patrik Jonsson. “I respect people’s sincere religious beliefs, but she has a job as a government official, and it’s not for her to refuse to do her job.”

After the Supreme Court’s landmark ruling on same-sex marriage in June, Democratic Kentucky Gov. Steven Beshear ordered all county clerks in the state to issue marriage licenses to same-sex couples. Davis decided to take a moral stance and refuse not just issuing licenses to same-sex couples but to all couples.

She said that issuing licenses for same-sex couples would go against her religious beliefs and be a “searing act of validation [of gay marriage] would forever echo in her conscience,” her lawyers argued in court.

A federal district court ordered her to comply with the governor’s ruling and she remained defiant.

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In a ruling last month, US District Judge Bunning wrote that the clerk “has arguably [violated the First Amendment] by openly adopting a policy that promotes her own religious convictions at the expense of others.”

Her effort to appeal the order to a federal court and even the Supreme Court went unheeded, effectively leaving her without any legal recourse.

Still Davis refused to issue licenses citing “God’s authority” as higher than that of the highest court in the land.

"Government officials are free to disagree with the law, but not disobey it," US Attorney Kerry B. Harvey wrote in a statement on the eve of the hearing. "The County Clerk has presented her position through the federal court system, all of the way to the U.S. Supreme Court. It is time for the Clerk and the County to follow the law."

Still, some experts say arresting Davis could backfire if she effectively becomes a martyr for her religious views, fomenting opposition against same-sex marriage.

The image of "a middle-aged woman being hauled off to jail for purportedly following her conscience would send thousands of anti-gay Americans reaching for their pitchforks (and checkbooks)" to support legal efforts to rebuff gay marriage rights, Mark Joseph Stern notes in Slate.

This report contains material from the Associated Press.