In a dispute between couples seeking to wed in a Kentucky county and the clerk’s office shutting down marriage operations out of religious concerns, a federal judge on Wednesday sided with the couples.
U.S. District Judge David Bunning, an appointee of George W. Bush, issued a preliminary injunction on Wednesday enjoining Rowan County Clerk Kim Davis from applying her “no marriage licenses” policy in the aftermath of the U.S. Supreme Court decision in favor of same-sex marriage nationwide. The apparent result of the decision is the clerk must issue marriage licenses to all couples — gay or straight — who come to her office seeking the document.
In his decision, Bunning characterizes the case as assertion of conflicting rights, one the fundamental right to marry recognized in the due process clause of the 14th Amendment, the other the right to free exercise of religion under the First Amendment.
“The tension between these constitutional concerns can be resolved by answering one simple question: Does the Free Exercise Clause likely excuse Kim Davis from issuing marriage licenses because she has a religious objection to same-sex marriage?” Bunning writes. “For reasons stated herein, the Court answer this question in the negative.”
Davis, an Apostolic Christian, refused to give marriage licenses to any couples — gay or straight — after the Supreme Court ruling in favor of same-sex marriage in June. Four of her deputy clerks share her religious objection to same-sex marriage. Although another is undecided, Davis has refused to allow this clerk to issue licenses because Davis’ name and title appear on the documents.
The clerk refused to issue marriage licenses to same-sex couples even though Kentucky Gov. Steve Beshear, who’s identified as an defendant in the case, issued a directive to clerks saying because they took an oath to comply with the U.S. Constitution they all must distribute marriage licenses to couples regardless of their sexual orientation.
For the plaintiffs in the case, two same-sex couples and two different-sex couples seeking to wed in Rowan County, Bunning determines they’re entitled to receive marriage licenses at clerk’s office because of a fundamental right to marry and the absence of a compelling state interest to withhold from them the documents.
“Even if Plantiffs are able to obtain licenses elsewhere, why should they be required to?” Bunning writes. “The state has long entrusted county clerks with the task of issuing marriage licenses. It does not seem unreasonable for Plaintiffs, as Rowan County voters, to expect their elected official to perform her statutorily assigned duties. And yet, that is precisely what Davis is refusing to do.”
Although Davis claims she may refuse licenses as result of the right to free exercise of religion and freedom of speech, Bunning denies those are adequate reasons for her to shut down operations in her office.
Davis had argued before the court she’s able to deny marriage licenses after the Supreme Court ruling just as Kentucky Attorney General Jack Conway refused to defend the state’s now-defunct marriage ban in court, but Bunning concludes the situations are dissimilar.
“Both are elected officials who have voiced strong opinions about same-sex marriage, but the comparison ends there,” Bunning writes. “Governor Beshear did not actually ‘exempt’ Attorney General Conway from pursuing the same-sex marriage appeal. Attorney General Conway’s decision stands as an exercise of prosecutorial discretion on an unsettled legal question. By contrast, Davis is refusing to recognize the legal of U.S. Supreme Court jurisprudence in performing her duties as Rowan County Clerk. Because the two are not similarly situated, the Court simply cannot conclude that Governor Beshear treated them differently based upon their religious convictions.”
Dan Canon, an attorney who represented the couples on behalf of the Louisville, Ky.-based Clay Daniel Walton Adams, PLC, hailed the preliminary injunction as a win.
“The ruling represents a total victory for our clients, and a reaffirmation of the institutions we have in place to protect American democracy,” Canon said. “Elected officials cannot be permitted to ignore the rule of law by governing according to their own private beliefs.”
Davis didn’t respond to the Washington Blade’s request to comment on the preliminary injunction, but she’s already filed notice with the court the she intends to appeal to the U.S. Sixth Circuit Court of Appeals.
Roger Ganman, a lawyer representing Davis and senior attorney with Liberty Counsel, confirmed his team has filed an appeal and will seek a stay of the ruling.