Without any sign of dissent, the Supreme Court on Monday evening passed up its first chance to act decisively on the rising religious freedom protest against same-sex marriage. In a one-sentence order, the Court refused a Kentucky county clerk’s plea for protection from having to issue marriage licenses, including licenses for same-sex partners, to which she objects as a matter of faith.
The Court’s denial order put into effect an order by a federal trial judge in Ashland, Ky., requiring Rowan County Clerk Kim Davis to give up her no-licenses policy. District Judge David L. Bunning had issued the order to implement the Supreme Court’s decision in Obergefell v. Hodges after the state’s governor ordered all county clerks to give official permission to gay and lesbian couples to wed.
The Supreme Court’s order was not a final ruling on Davis’s argument that her right to freedom of conscience should give her an exemption from having any part in the licensing process that would lead to same-sex marriages. She has an appeal on that question now pending at the U.S. Court of Appeals for the Sixth Circuit.
She is now faced not only with Judge Bunning’s order, but a mandate from Governor Steven Beshear that she either issue licenses to same-sex couples or resign her office.
Although her request to the Supreme Court for relief from having to issue any licenses was only temporary, her lawyers had brought out the full range of their constitutional arguments for such an exemption.
The Justices gave no explanation for turning down the temporary request, but one of the factors they consider in such a situation is whether there is a fair prospect that the Court ultimately would agree to review the case on the legal merits of her challenge.
The Justices turned her down without even asking for a response from the same-sex couples who had sued her, or from state officials in Kentucky whom Davis has sued over the issue. The fact that the Court took more than a normal business day to act on her request probably indicated no more than that the Justices are scattered during their summer recess.
Davis will be free, once the Sixth Circuit acts on her pending appeal, to try to return to the Supreme Court to get a decision settling her constitutional claim. In the meantime, though, she confronts a choice that she and her lawyers had argued amounted to “trampling” on her rights of conscience.