UPDATED Saturday 7:49 a.m.   Relying upon the history, dating back to America’s founding, of the right of conscience, Rowan County Clerk Kim Davis asked the Supreme Court on Friday night to protect her from taking an official action that she regards as an indication that she supports same-sex marriage, an act that would violate her faith.   She wants that temporary shield from issuing any marriage licenses while she pursues an appeal first in the U.S. Court of Appeals for the Sixth Circuit and, if she loses there, the Supreme Court.  A key issue, her application argued, is a new one: whether she has a right to avoid all licensing, avoiding any discrimination, to follow her faith principles.  She also contended that couples seeking to marry in her county suffer no harm from her policy, because they can drive in thirty minutes or less to several neighboring counties where licenses are now available.  Her application, including lower court orders, is here.  The Supreme Court has the option, before acting, of seeking a response from  the couples who sued.

————-

UPDATED Friday 10:52 p.m.   The application (Davis v. Miller, 15A250) has now been filed at the Court.  The blog will provide a copy as soon as it becomes available.

————

A county clerk in Kentucky who stopped issuing any marriage licenses to avoid doing so for same-sex couples — an action that she says would violate her religious beliefs — is taking her case to the Supreme Court.  On Friday, the clerk’s lawyers formally notified a federal judge that they were pursuing an emergency order from the Supreme Court that would allow her to continue her “no licenses” policy.

This would mark the first time that the Court has been asked to take any action on the spreading resistance, based on religious opposition, to the June 26 ruling opening marriage rights to same-sex couples.

Kim Davis is the elected clerk for Rowan County, in a rural area of northeastern Kentucky centered in the small town of Morehead, whose population is less than 7,000.  She has told the courts and state officials in Kentucky that she is an Apostolic Christian who is opposed to same-sex marriage as a matter of faith.  She stopped issuing any licenses to marry within hours after the Supreme Court ruled in Obergefell v. Hodges that same-sex couples have an equal right to marry under the Fourteenth Amendment.

Two lower courts — David L. Bunning, a federal trial judge in Ashland, Ky., and the U.S. Court of Appeals for the Sixth Circuit — have turned aside Davis’s challenge to orders by the state governor that she either issue marriage licenses to all couples who qualify — including same-sex couples — or resign her office.

She has been sued in Judge Bunning’s court by two same-sex couples and two opposite-sex couples who were denied licenses to marry when they applied to Davis.  Earlier this month, the judge issued a preliminary order requiring her to issue those couples a license when they re-apply.  That order has been put on hold by the judge, but only until next Monday.

The Sixth Circuit refused on Wednesday to interfere with the judge’s order.  Although the court of appeals has yet to rule on the appeal the clerk has filed to challenge Judge Bunning’s ruling, it found “little or no likelihood that the clerk in her official capacity will prevail” when that appeal is decided.  The three-judge panel noted that the order only operates against the person holding the office of Rowan County clerk, and thus is not aimed directly at Davis.

In Kentucky, marriage licenses are issued by county clerks, unless the holder of that office is absent.  Under Kentucky law, as in other states, a marriage license formally authorizes the performance of a marriage.  In Kentucky, the license must also include the signature of the county clerk.

According to Davis’s challenge, those two requirements in combination mean that she will be endorsing any same-sex marriage that is performed on the basis of a license she issued.  She will have participated, she argued, in the act of accomplishing that marriage.  As she told Judge Bunning in one of her court filings, “if it happened, there is no absolution or correction that any earthly court can provide to rectify….  No one (and no court) can unring that bell.”

On Friday, Davis’s lawyers returned one more time to Judge Bunning’s court, asking him to extend the postponement of his order beyond next Monday.  The filing said that her lawyers “filed today in the Supreme Court of the United States an emergency application” to delay his ruling that she must issue the licenses to the couples who sued.   This would give the Supreme Court time to act, the motion said.

Judge Bunning turned down the request, in a simple order without an explanation.

As of the close of business Friday evening, the Supreme Court had not yet received such an application.  The application, when formally received, will go first to Justice Elena Kagan, who handles emergency filings from the Sixth Circuit.  She has the option of acting on the request alone, or instead sharing it with her colleagues — now the normal practice in most cases.

If, as is expected, her lawyers make the same arguments to the Justices that they have made in lower courts, Davis will be claiming that her First Amendment rights to exercise her religion protect her from having to issue marriage licenses that, to her, foster a violation of her faith.  She is claiming protection not only under the First Amendment religious freedom clause, but also under a Kentucky law that seeks to protect the exercise of religious freedom.

Part of her arguments in lower courts have cited the comments that Justice Anthony M. Kennedy made in the majority opinion in Obergefell, indicating that the decision did not bar those who oppose same-sex marriage for religious reasons from continuing to express their faith principles in reaction to the decision.

She also has contended that the governor’s order to issue licenses to same-sex marriage interferes with her right of free speech under the First Amendment.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Same-sex marriage issue returns to the Court (FURTHER UPDATED), SCOTUSblog (Aug. 29, 2015, 7:50 AM), http://www.scotusblog.com/2015/08/same-sex-marriage-issue-returning-to-the-court/