As a result, Rowan County Kim Davis will likely be required to give licenses to all couples at this time regardless of their sexual orientation. An Apostolic Christian, Davis said after the U.S. Supreme Court decision on marriage she can’t give licenses to same-sex couples because of her religious beliefs and closed marriage operations in her office.
In a three-page decision, a three-judge panel on the U.S. Sixth Circuit Court of Appeals says it cannot grant Davis a stay pending appeal on a district court injunction requiring her to give marriage licenses to same-sex-couples because she’s unlikely to succeed in the lawsuit.
“The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk,” the decision says. “In the light of binding holding of Obergefell, it cannot be defensibly argued that that 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.”
Also, in the decision, the court allows the Eagle Forum, a social conservative organization founded by activist Phyliss Schlafly, to file a friend-of-the-court brief in the litigation as it proceeds on appeal.
The three-judge panel who denied the stay request consists of U.S. Circuit Judge Damon Keith, a Carter appointee; U.S. Circuit Judge John Rogers, an appointee of George W. Bush; and U.S. Circuit Judge Bernice Donald, an Obama appointee.
It remains to be seen what action Davis will take in the aftermath of the stay denial. After all, her office continued to deny marriage licenses to same-sex couples despite an order from U.S. District Judge David Bunning earlier this month requiring her to give marriage licenses in her office.
After she filed an appeal and stay request with the district court, Bunning issued a temporary stay on his order that wasn’t set to expire until Aug. 31. However, that stay was set to stay in place “absent a contrary order” from the Sixth Circuit.
Davis has the option of making an additional stay request with the Supreme Court as the litigation proceeds on appeal through the judiciary.
Bunning issued the preliminary injunction against Davis as result of litigation filed by couples seeking to wed in Rowan County after she closed marriage operations following the historic Supreme Court decision on marriage.
Dan Canon, an attorney representing the couples on behalf of the Louisville, Ky.-based Clay Daniel Walton Adams, PLC, said the opinion “says it all.”
“It’s yet another affirmation that county clerks have to abide by the law, just like everyone else,” Canon said.
UPDATE: Roger Gannam, senior litigation counsel for Liberty Counsel and lawyer for Davis in the case, said he intends to petition the Supreme Court for a stay.
JoDee Winterhof, the Human Rights Campaign’s senior vice president for policy and political affairs, said Davis should step down if she can’t give marriage licenses to couples regardless of their sexual orientation.
“Public servants have a responsibility to serve the entire public, including LGBT people,” Winterhof said. “Freedom of religion is important, and Ms. Davis has the fundamental right to believe what she likes, but as a public servant she does not have the right to pick and choose which laws she will follow or which services she will provide. If Ms. Davis feels as though she cannot fulfill her responsibilities, she should resign her public position.”