A federal judge has given time to a Kentucky clerk seeking to appeal an order requiring her to issue marriage licenses to same-sex couples — but attorneys involved in the case are split on the meaning of the decision.
In a seven-page order, U.S. District Judge David Bunning, an appointee of former President George W. Bush, denied a stay request from Rowan County Clerk Kim Davis on his earlier injunction requiring her to give marriage licenses at her offices to all couples — gay or straight — as litigation against her proceeds to the U.S. Sixth Circuit Court of Appeals.
Following the U.S. Supreme Court ruling in favor of same-sex couples, Davis, an Apostolic Christian, enacted a “no licenses” policy in her office based on her religious beliefs for all couples seeking marriage license regardless of their sexual orientation.
Bunning says he’s basing his denying of the stay on the unlikelihood that she would succeed on appeal, dismissing arguments Davis would be harmed if she had to give marriage licenses to same-sex couples before the Sixth Circuit renders a decision.
“While Davis is correct in stating that a violation of her free exercise rights would constitute irreparable harm, she has failed to show that she is likely to suffer a violation of her free exercise rights in the first place,” Bunning writes. “As the Court pointed out in its Memorandum Opinion and Order, Davis is only being required to certify that couples meet the legal requirements to marry. She does not have to authorize or approve any unions on moral or religious grounds. Absent a likely constitutional violation, Davis is unlikely to suffer irreparable harm absent a stay.”
But at the same time, citing “the constitutional issues involved, and realizing that emotions are running high on both sides of the debate,” Bunning decided to “temporarily stay this order” pending Davis’ appeal of the initial order to the Sixth Circuit.
Attorneys representing Davis on one hand and attorneys representing the couples suing her to issue marriage licenses on the other had differing takes on the order.
Dan Canon, an attorney representing the couples on behalf of the Louisville, Ky.-based Clay Daniel Walton Adams, PLC, said the order requiring Davis to issue marriage licenses remains in effect.
“There is nothing in the opinion that indicates she is relieved from the original injunction,” Canon said. “I think the judge is sending a clear message that she is going to be expected to abide by the injunction absent any contrary ruling by the Sixth Circuit.”
But Mat Staver, who represents the Kentucky clerk on behalf of the founder of Florida-based Liberty Counsel, is quoted in the Associated Press as saying the convoluted order essentially grants her request for more time.
Despite the initial injunction last week, Davis has defied the court and continues to deny marriage licenses in her office — at least to same-sex couples. One of the couples, David Moore and David Ermold, posted a video online of clerk officials denying them a marriage license despite the court order.
Allison Steinberg, a spokesperson for the American Civil Liberties Union, said the most recent court order means Davis doesn’t have to issue marriage licenses as the litigation proceeds on appeal.
“We think the district court is confident that the court of appeals will agree with him in short order and it will be better for everyone to have certainty,” Steinberg said.
UPDATE: On Wednesday, Bunning issued a clarifying order saying his stay intended to temporarily halt the order last week requiring Davis to issue marriage licenses. Further, the clarifying order says the temporary stay is set to expire Aug. 31 absent a contrary order from the Sixth Circuit.