Federal appeals court denies relief to Kentucky county clerk who objects to gay marriage

Mike Wynn | The (Louisville, Ky.) Courier-Journal

The 6th U.S. Circuit Court of Appeals in Cincinnati denied a request Wednesday from a Kentucky court clerk to stay a federal injunction that called on her to provide marriage licenses to same-sex couples.

Judges found that "it cannot be defensibly argued that the holder of the Rowan County Clerk’s Office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution," especially after a U.S. Supreme Court ruling. They said that Rowan County Clerk Kim Davis, whose office is in Moorehead, Ky., had little or no likelihood of prevailing on appeal in her official capacity.

Citing personal religious objections against gay marriage, Davis has denied licenses to all couples following the June Supreme Court ruling that cleared the way for same-sex marriage nationwide.

In testimony last month in federal court in Covington, Ky., Davis described herself as an Apostolic Christian who believes marriage is defined as the union of one man and one woman under the Bible — “God’s holy word” — and said she contemplated her policy for months.

The American Civil Liberties Union had sued her on behalf of two same-sex couples and two opposite-sex couples, alleging that Davis violated their constitutional rights when refusing to issue licenses.

The couples argued that they live, work and pay taxes in Rowan County, a county of about 24,000 residents halfway between Lexington, Ky., and Huntington, W.Va., and shouldn’t have to drive elsewhere to obtain the paperwork to get married.

U.S. District Judge David Bunning granted a preliminary injunction against Davis this month, finding that her religious convictions do not excuse her from performing official duties and upholding her oath of office.

Dan Canon, a lawyer representing couples who wish to obtain a license in Rowan County, said his clients in theory should be allowed to obtain the paperwork immediately.

"It’s not terribly surprising," he said about Wednesday's order. "It’s correct and yet another reaffirmation that clerks have to abide by the rule of law just like everybody else.”

Some county officials in Southern states — including Cleburne County Clerk Dana Guffey in Heber Springs, Ark.; Decatur County Clerk Gwen Pope and two others in Decaturville, Tenn.; and Rusk County Clerk Joyce Lewis-Kugle in Henderson, Texas — have resigned rather than issue licenses to same-sex couples. Alabama law says county probate judges in the state "may" issue marriage licenses, so some counties there have ceased providing the service.

The Liberty Counsel, a religious freedom organization representing Davis, plans to request a stay from Supreme Court Justice Elena Kagan as early as Thursday.

Mat Staver, founder and chairman of the group, said lawyers also will seek clarification from the District Court on whether Davis must personally issue licenses or if someone else in her office can perform the task. He said he didn't know if Davis would resume providing the forms Thursday but called it "disturbing" that the appellate judges cast doubt on her appeal.

"It suggests that individuals within a government agency don’t have any independent constitutional rights," he said. "They don’t lose their constitutional or statutory rights by virtue of working in a public office."

Davis has argued that signing off on the forms amounts to condoning same-sex marriage and that her objections are protected under the First Amendment and Kentucky's religious freedom law.

Bunning originally wrote that the state is not restricting her religious activities nor asking her to condone the unions, and he said her beliefs have no bearing on a “purely legal” task. Bunning wrote that the couples have strong ties to their community and an understandable preference to obtain the paperwork there.

Couples have made several attempts to get the forms in Rowan County, and at least four were refused after Bunning issued an injunction. Bunning had stayed his injunction pending Davis' appeal to the 6th Circuit.

Canon said he would expect Kagan to agree with the appellate judges.

The Liberty Counsel "will very likely use every procedural avenue that they have available to them," he said.