Just two months ago, millions of Americans celebrated the Supreme Court’s decision in Obergefell v. Hodges, which found in favor of marriage equality. Couples across the country began applying for marriage licenses at their local county clerk’s office. Since the decision, most trips to county clerk offices now have happy endings for all couples seeking to get married. But one of the few exceptions is the Rowan County Clerk office.
On June 26, the Supreme Court legalized same-sex marriage, and upon receiving notification that she was to issue licenses to same-sex couples, Kim Davis, a County Clerk in Kentucky began refusing to issue licenses to any couples, citing that her religion prevented her from issuing licenses to gay couples. By refusing to issue licenses to all couples, Davis sought to get around the Constitution (and Queen Ruth), which requires all U.S. citizens to be treated equally. If she had only denied same-sex couples licenses, Davis would have found herself faced with a discrimination lawsuit.
Davis is not the only clerk objecting to issuing licenses to same-sex couples for religious reasons— 60 county clerks in Kentucky signed a letter to Governor Beshear stating that they objected to issuing licenses to same-sex couples on religious grounds. In July, Hood County Clerk Katie Lang refused to issue a Texas couple a license for the same reason. Additionally, probate judges in 13 counties in Alabama are refusing to issue any licenses.
Nearly two months later, Eastern Kentucky District Court Judge David Bunning ordered Davis to resume issuing licenses to same-sex and heterosexual couples, after the ACLU (American Civil Liberties Union) filed on behalf of four couples in the state. Davis is now represented by Liberty Counsel, a nonprofit organization that provides legal support for religious exception suits. On August 17, Judge Bunning stayed (i.e. put on hold) his decision so that Davis could appeal to the 6th Circuit Court of Appeal.
Davis has argued that as the County Clerk, she is legally required to approve all marriage licenses (which is true—in Kentucky the County Clerk confirms that both parties seeking the license meet all legal requirements). She added that because of this she cannot allow anyone else to issue licenses in Rowan County. When Ms. Davis took an oath of office, she promised to uphold, execute, and obey the laws as set down by the Commonwealth of Kentucky, as well as the Constitution. Which means that she is legally required to follow any mandates derived from the Constitution and the Supreme Court. Unfortunately for Davis, this means she does not get to pick and choose which laws she upholds. But a judgement in her favor would open the door for other officials to refuse to execute or enforce laws.
As of Wednesday, August 26, the 6th Circuit Court of Appeals declined to grant Davis a stay while she goes through the appeal process. In their decision, the Court stated 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 as interpreted by a dispositive holding of the United States Supreme Court. There is thus little or no likelihood that the Clerk in her official capacity will prevail on appeal.”
She now has two options available to her; she may resign and not issue licenses at all, or she can issue licenses to all American couples. Her next option would be to appeal directly to the United States Supreme Court, but as my law professor intimated- “The likelihood of the Supreme Court taking it is about as high as me having a third child… next to impossible.”
On Thursday morning, less than 24 hours after the 6th Circuit reversed Judge Bunning’s stay, Davis has already refused to issue a license to a same-sex couple. At this point, Ms. Davis is in contempt of the 6th Circuit, and Judge Bunning’s orders, and could be arrested. Additionally, she may face private lawsuits by couples who were denied licenses.