August 26, 2015 at 4:54 pm EST | by Chris Johnson
Appeals court denies stay for Ky. clerk on marriage order

same-sex marriage, gay news, Washington Blade

The Sixth Circuit has denied a stay request to a Ky. clerk seeking to deny marriage licenses to same-sex couples.

A federal appeals court has denied a Kentucky clerk’s request to allow her to keep denying marriage licenses to all couples — gay or straight — as litigation seeking to enjoin her from enforcing her “no licenses” policy continues through the judicial process.

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.”

h/t Equality Case Files

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

  • I don’t think Kim Davis should resign. I think that Christian bitch should be fired, then thrown of office using her face to open the door, and then personally, financially devastated for integrating her shit-Christian-religion into a secular public office.

  • Davis should be either suspended for refusing to do the duties of her office or fired. What employee gets to refuse to do their job and keep it? It’s ridiculous that she’s kept on the payroll while this litigation makes its way through the courts. If her office is closed, why is she being paid? It’s welfare if not a rip off of tax payer money!

    How can this one person have so much power? She’s overstepping her authority. Doesn’t she answer to anyone? Enough is enough! If you won’t fire her then suspend her without pay! No one is forcing her to stay on that job. She can find something else to do if she doesn’t want to do this job and follow the law! It just proves the whole state government is tacitly endorsing her actions when it refuses to can her or suspend her!

    So much for all of you that were under the delusion that because the SCOTUS ruled in favor of marriage equality the war is over! It’s just the beginning of endless litigation to get the unwilling to enforce the law! Laws may change but homophobia continues!

  • Good thing that people like this are dying off. The 1950s are over, time to join the 21st century. Your bigotry is a dying ideal.

  • She
    claims to be an Apostolic Christian, but she isn’t even following the
    rules of her church. The Apostolic Church’s Statement of
    Faith: #17. “Governmental authority is respected and obeyed. ”

  • Stop the nonsense and remove Kim Davis from her position for disobeying the civil law to issue civil marriage licenses to all of the taxpaying citizens. This is ridiculous!

  • What we are looking at is more than just contempt of court. She has continued to receive her full salary while refusing to do her job, and has instructed those in her office to do the same. That is theft in office, and suborning theft in office. Both of which can be felonies which carry both fines and major jail time.

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