After the Supreme Court ruled in favor of same-sex marriage nationwide, Rowan County Clerk Kim Clerk shut down marriage operations in her office, citing her religious objections as an Apostolic Christian. Couples seeking to marry in Rowan County filed a lawsuit against her and U.S. District Judge U.S. District Judge David Bunning issued a preliminary injunction in their favor — although Davis continues to resist giving marriage licenses at her office.
On the same day she petitioned the Supreme Court for a stay on the order, Bunning refused to extend a temporary stay on his order set to expire on Monday. Also on Friday, the Kentucky-based Morehead News reported Rowan County Attorney Cecil Watkins referred a charge of official misconduct to state officials.
In a 40-page filing to the Supreme Court, attorneys for Davis ask U.S. Associate Justice Elena Kagan, who’s responsible for stay requests in the Sixth Circuit, to halt the order requiring her to give marriage licenses to all couples regardless of sexual orientation. Kagan can decide the matter on her own, or refer to issue to the entire court.
Jonathan Christman, an attorney with the social conservative Liberty Counsel, argues the court must grant a stay because requiring Davis to issue even one marriage license to a same-sex couple would violate her religious conscience irrevocably.
“It is comparable to forcing the religious objecting nurse to perform an abortion, the religious objecting company or non-profit to pay for abortions or abortion-related insurance coverage, the religious objecting non-combatant to fire on an enemy soldier, or the religious objecting state official to participate in or attend the execution of convicted prisoner,” the filing says. “Ordering Davis to authorize and approve a SSM license is the act that violates her conscience and substantially burdens her religious freedom — an act which cannot be undone.”
But this argument has failed in previous stay requests before lower courts. At the district court level, Bunning refused a stay pending appeal on his order requiring Davis to issue marriage licenses, although he issued a temporary stay. A three-judge panel on the U.S. Sixth Circuit Court of Appeals subsequently denied her a stay after Davis appealed the order against her to the appellate court.
Doug NeJaime, a law professor at the Williams Institute, University of California, Los Angeles, predicted the Supreme Court would follow suit.
“I do not think the Supreme Court is likely to get involved with this case,” NeJaime said. “There is no legal basis on which the county clerk’s office is not issuing marriage licenses.”
it remains to be seen what action Davis will take if a stay is denied once again. Despite the previous absence of a stay, her office has defied court orders and continued to deny marriage licenses to same-sex couples.
The stay request is arguably the first opportunity for the U.S. Supreme Court to weigh in on the intersection of LGBT rights and religious liberty. In 2014 Hobby Lobby decision, the Supreme Court ruled a closed-held for-profit company under the Religious Freedom Restoration Act could deny health coverage to employees that covers birth coverage and abortion.
But legal experts say the response from the Supreme Court on the stay request won’t a good predictor of the high court’s views on when religious objections should win out over LGBT rights.
Nan Hunter, a lesbian law professor at Georgetown University, said a variety of things will go into the Supreme Court’s decision on the stay other than the arguments in the case.
“Many factors other than the merits influence a court’s decision on whether to grant a stay, so I would not place a great deal of weight one way or another on how the Court responds to this request,” Hunter said.
NeJaime also said the response to the stay request won’t be a good indication of the Supreme Court’s thinking.
“Because this is such a clear case, I don’t think it gives us much of a window into how the justices might approach a range of issues at the intersection of religious liberty and LGBT equality,” NeJaime said.