The Washington PostDemocracy Dies in Darkness

Federal judge orders Christian clerk to issue same-sex marriage licenses

Earlier this year, David V. Moore and his fiance — both men — stood in front of the Rowan County Courthouse in Morehead, Ky., about 70 miles east of Lexington. They had been together for 17 years, they said; they had lived in Rowan County for 10 years. They wanted to get a marriage license, and thought a landmark Supreme Court ruling in June gave them the right to.

“Let’s find out,” Moore said.

Yet, as a camera rolled, they predicted that the policies of Rowan County’s clerk — a court official named Kim Davis who is an Apostolic Christian — wouldn’t allow it. Davis had stopped issuing licenses to any couples after the court ruled same-sex couples have the right to marry.

The men walked together into the courthouse. After a wait, they made their way to a counter armed with the Supreme Court ruling and an order from Kentucky Gov. Steve Beshear (D) mandating clerks issue licenses. But they were turned down.

“We know what it reads, sir,” a court employee said. “And we’re not issuing any licenses.”

The employee pointed out that they could go to any other county in Kentucky, and said they should take their objections up with Davis, who was not present. But this Rowan County couple wanted a Rowan County marriage license. Wasn’t it their right?

“I’m sorry, that’s her choice,” the employee said. “We have the right too as a Christian, she feels.” And so, no license was issued.

But now, a federal court has ruled that Davis can’t withhold marriage licenses from any couples any longer, giving victory to a number of couples — heterosexual and homosexual — who sought relief. More specifically, six couples — gay and straight — sued Davis in federal court over her refusal to issue marriage licenses and Wednesday a federal trial court judge granted the couples a preliminary injunction requiring Davis to act.

Judge David L. Bunning of the U.S. District Court for the Eastern District of Kentucky drew the battle lines: a tension between the right to marry implicit in the Fourteenth Amendment and the free exercise of religion “explicitly guaranteed” by the First Amendment.

“The tension between these constitutional concerns can be resolved by answering one simple question: Does the [First Amendment] likely excuse Kim Davis from issuing marriage licenses because she has a religious objection to same-sex marriage?” Bunning wrote. “… The Court answers this question in the negative.”

“The ruling represents a total victory for our clients, and a reaffirmation of the institutions we have in place to protect American democracy,” Dan Canon, an attorney who represented the couples, told the Washington Blade. “Elected officials cannot be permitted to ignore the rule of law by governing according to their own private beliefs.”

Davis’s attorney, who has filed a notice of appeal, disagreed.

“Kim Davis is resolute in vindicating her rights,” Roger Gannam, senior litigation counsel at Liberty Counsel, a religious advocacy group, told the Lexington Herald-Leader. “Fundamentally, we disagree with this order because the government should never be able to compel a person to violate their sincerely held religious beliefs.”
Though the judge said the case turned on “one simple question,” the legal issues at hand were considerably more complicated. Among them:

Did it matter that the plaintiffs could get marriage licenses elsewhere in Kentucky? No, Bunning said: “This argument ignores the fact that Plaintiffs have strong ties to Rowan County.”

Is issuing a marriage license — or deciding not to — protected speech? No, Bunning said: “Because [Davis’s] speech (in the form of her refusal to issue marriage licenses) is a product of her official duties, it is likely not entitled to First Amendment protection.”

What about Kentucky’s Religious Freedom Restoration Act — a law that says the government “shall not substantially burden a person’s freedom of religion”? Did that protect Davis?

No, Bunning said.

“The state is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities,” the judge wrote. “She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County clerk.”
Though the action will continue to wind its way through the federal courts — and though Davis is also suing Gov. Beshear for ordering her to issue same-sex marriage licenses in the first place — she has lost this initial round.

“Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions,” Bunning also wrote in explaining his ruling. “Davis is certainly free to disagree with the court’s opinion, as many Americans likely do, but that does not excuse her from complying with it. To hold otherwise would set a dangerous precedent.”