David Moore and his partner, David Ermold, unsuccessfully tried to get a marriage license earlier this month.
A federal appeals court has ruled that a Kentucky official who refused to issue marriage licenses after the Supreme Court’s historic gay marriage ruling earlier this year must do so while she continues to pursue litigation in federal court.
Kim Davis is a court official in Morehead, Ky., about 70 miles east of Lexington. After the Supreme Court ruled gay couples have a right to marry, Davis, an Apostolic Christian, refused to issue any marriage licenses at all — and was promptly sued by six couples, gay and straight. Earlier this month, a federal trial court judge said she had to honor the high court’s ruling notwithstanding her personal religious beliefs.
“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,” Judge David L. Bunning of the U.S. District Court for the Eastern District of Kentucky wrote. “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.”
Yet, the day after the ruling, one gay couple showed up at Morehead’s Rowan County Courthouse armed with a camera — and was turned away, told that the case was under appeal.
“Currently this morning, we are still in litigation, and we are still not issuing marriage licenses,” a court employee told David Moore and his partner David Ermold, who have repeatedly tried to get a license in their home county.
“She’s wrong, and these people are cruel to do this to us,” Ermold said. “… We have waited for years to get married. We have been together forever. He wanted to wait until it was legal in all the states.” Ermold added: “This is the way gay people are treated in this country. … If nothing comes of this, at least I hope that other people understand that this is wrong.”
Now, the court clerk has lost another round in the litigation about the tension between the constitutional protection of both same-sex marriage and religious freedom. Davis requested a stay of the district court’s ruling — and, on Wednesday, the U.S. Court of Appeals for the 6th Circuit denied it.
“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,” the Sixth Circuit wrote. “… There is thus little or no likelihood that the Clerk in her official capacity will prevail on appeal.”
Mat Staver, the founder and chairman of the Liberty Counsel, a group representing Davis that aims to advance religious freedom, objected to the decision.
“It suggests that individuals within a government agency don’t have any independent constitutional rights,” Staver told Louisville’s Courier-Journal. “They don’t lose their constitutional or statutory rights by virtue of working in a public office.”
Davis plans to seek a stay of the order requiring to issue licenses from a justice of the U.S. Supreme Court as early as Thursday, the Courier-Journal also reported. And Staver told the Courier-Journal that he did not know whether Davis will resume providing the necessary forms at the Rowan County Courthouse beginning on Thursday to obtain a marriage license.
Reached by phone early Thursday, Moore said he and Ermold were “kind of pessimistic” about getting a license, but would “see what happens in the morning and then decide about going down to try again.” He pointed out that the original decision might not go into effect until the end of the month.
“This is our home county, this is where we live, this is where we pay taxes,” Moore said. “This is telling someone: ‘We don’t want you here.'”
Moore said that, when he asked Davis in person about her refusal to issue a marriage license, she got “kind of emotional” and recounted the story of Adam and Eve.
“That’s fine,” he said. “That’s her beliefs. I don’t believe that way.”