Metro Weekly

Kentucky county clerk can continue to deny marriage licenses

Judge stays decision ordering Kim Davis to issue licenses while her lawyers appeal to the 6th Circuit

The old Rowan County Courthouse (Photo credit: W.marsh, via Wikimedia Commons.)
The old Rowan County Courthouse (Photo credit: W.marsh, via Wikimedia Commons.)

U.S. District Judge David Bunning threw a curveball at LGBT advocates and allies on Monday afternoon when he stayed his decision ordering clerk Kim Davis of Rowan County, Ky., to begin issuing marriage licenses to qualified couples.

Last Wednesday, Bunning had granted a preliminary injunction to four Rowan County couples — two straight and two gay — who were denied marriage licenses because of Davis’ refusal to issue the licenses or even allow a deputy to issue them in her place. 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 on Monday, Bunning issued an unusual ruling, in one sentence saying he would not delay his previous order while in the next saying he would delay the order while Davis’ lawyers appeal the case to the 6th U.S. Circuit Court of Appeals, according to the Lexington Herald-Leader. Effectively, this means Davis — and all her subordinates — may continue denying marriage licenses to any couple that tries to obtain one in Rowan County.

Davis initially refused to issue any marriage licenses following the Supreme Court’s legalization of marriage equality in June, for fear of being accused of discriminating against same-sex couples. But Davis says her opposition to allowing any couples to obtain licenses in the county is due to her sincerely held Christian beliefs opposing same-sex marriage. The ACLU of Kentucky then sued Davis on behalf of the four couples who were unable to obtain marriage licenses in their home county. 

Bunning previously eviscerated arguments put forth by Davis’ lawyers in his opinion, writing that compelling Davis to do the duties she is tasked with doing as a clerk does not violate her First Amendment rights to either free speech or the free exercise of religion.  

“The State certainly has an obligation to ‘observe the basic free exercise rights of its employees,’ but this is not the extent of its concerns,” Bunning wrote in his ruling. “In fact, the State has somepriorities that run contrary to Davis’ proffered state interest. Chief among these is its interest in preventing Establishment Clause violations. Davis has arguably committed such a violation by openly adopting a policy that promotes her own religious convictions at the expenses of others.”

Late Monday afternoon, Bunning decided to stay his ruling while lawyers for the Liberty Counsel, a religious advocacy group that is representing Davis in her fight, appeal the case. Bunning said he stayed the ruling “in recognition of the constitutional issues involved and realizing that emotions are running high on both sides of the debate.”

Staver told the Herald-Leader that Liberty Counsel was “pleased” with the results of Bunning’s decision to stay his ruling pending appeal.

But Joe Dunman, one of the lawyers for the couples suing Davis, said that while Bunning’s ruling was puzzling, he believed that the 6th Circuit would deny Davis’ appeal and return the case to Bunning. If Davis continues to refuse to issue marriage licenses, she can potentially be found in contempt, which could carry stiff penalties if she continues to defy Bunning’s order, provided that her appeal is unsuccessful.  

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