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A three-judge panel on the 6th U.S. Circuit Court of Appeals rejected a motion by lawyers for Rowan County (Ky.) Clerk Kim Davis to stay a previous ruling ordering her office to begin issuing marriage licenses to qualified couples.
Davis and her lawyers, from the conservative legal firm Liberty Counsel, had argued that a ruling by U.S. District Judge David Bunning should be stayed while they try to appeal the decision. Bunning had previously granted a preliminary injunction to four Rowan County couples — two straight and two gay — who were denied marriage licenses because of a policy adopted by Davis’ office. Davis has refused to issue any marriage licenses for any couple, regardless of sexual orientation, following the Supreme Court’s legalization of marriage equality in June, for fear of being accused of discriminating against same-sex couples. But she also says her objection to same-sex marriages, based on her sincerely held Christian beliefs, prohibits her office from granting any license, as her name will still appear on the license even if she does not administer or file the form herself.
Bunning ruled that Davis’ “religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk,” but later stayed his own decision, citing “the constitutional issues involved and realizing that emotions are running high on both sides of the debate.” But with the 6th Circuit’s refusal to grant a stay while Davis’ lawyers appeal, that means that the clerk’s office must begin issuing marriage licenses on Monday, the day Bunning’s stay expires.
In their ruling, the three-judge panel on the 6th Circuit refused to grant the stay, arguing that Davis had not met “the burden of showing that the circumstances justify” granting such a stay.
“The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity,” the judges wrote. “The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the 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.”
The ACLU of Kentucky, which brought the suit against Davis on behalf of the four Rowan County couples, celebrated the 6th Circuit’s rejection of Davis’ request for a stay while she appeals the case to the full circuit. Lawyers for Liberty Counsel may appeal Wednesday’s ruling and ask for a stay from Elena Kagan, the U.S. Supreme Court Justice who oversees the 6th Circuit. But if a stay is not granted, it appears that someone in the clerk’s office — if not Davis herself — should begin issuing licenses as of Monday.
“This case is simple,” William Sharp, the legal director of the ACLU of Kentucky, said in a statement. “Religious liberty certainly does not allow public officials to deny government services to the public based on their personal beliefs. All that Davis is required to do in her official capacity as clerk is issue a form. In no way is she being forced to endorse anyone’s marriage or beliefs. The 6th Circuit recognized this fundamental violation of our clients’ rights in denying the stay.”
“Public servants have a responsibility to serve the entire public, including LGBT people,” JoDee Winterhof, senior vice president for policy and political affairs at the Human Rights Campaign, said in response to Wednesday’s ruling. “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.”
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