Judge David Bunning of the U.S. District Court for the Eastern District of Kentucky rejected a claim by Rowan County Clerk Kim Davis that she has a First Amendment right to refuse to issue any marriage licenses in order to avoid compromising her religious belief that a marriage can be only between one man and one woman.
Granting the plaintiffs’ motion for a preliminary injunction in Miller v. Davis on August 12, Judge Bunning concluded that all factors courts consider in deciding motions for preliminary injunctions favored the plaintiffs, including likelihood of success on the merits of their claim that the clerk’s action was violating their constitutional rights, and he granted the injunction. Clerk Davis, represented by Liberty Counsel, a so-called Christian law firm, promptly noticed her appeal to the 6th Circuit Court of Appeals and, upon advice of counsel, refused to comply with the injunction. Shortly after noticing the appeal, Liberty Counsel also sought a stay of the injunction pending appeal. Given the 6th Circuit’s hostility to marriage equality, it seemed possible that such a stay would be granted by the circuit court, if not by Judge Bunning.
The lawsuit was filed by two couples: April Miller and Karen Roberts (same-sex), and Kevin Holloway and Jody Fernandez (different-sex). Both couples tried to get marriage licenses from the Rowan County Clerk’s Office shortly after the Obergefell decision was announced by the Supreme Court, reversing the 6th Circuit and affirming a Kentucky federal district court ruling for marriage equality. Both couples were turned down, being told that the office was not issuing any marriage licenses. Both couples then went to Rowan County Judge Executive Walter Blevins, asking him to issue licenses. However, Blevins told them, Kentucky law authorizes him to issue licenses only when the county clerk is “absent.” Since Clerk Davis was continuing to fulfill her other duties, Blevins concluded that she was not “absent” so he did not have authority to issue licenses. Although at least seven neighboring counties quickly began issuing licenses after the Supreme Court ruling, these couples insisted that they wanted to get their licenses in the county where they lived, worked and paid taxes, and that they should not have to travel out of the county in order to get married, so they filed suit.
Unlike some other states, where clerks have argued that their controlling statute does not require them to issue marriage licenses, in Kentucky it is clear that county clerks are supposed to issue licenses, so Davis rests her defense on the proposition that she has a constitutional right based on the 1st Amendment and the state’s Religious Freedom Act to refuse to have any licenses issued by her office because of her religious objections to being seen to endorse same-sex marriages.
Although it is possible that one of her clerical employees could issue the licenses, Davis found this objectionable because, she says, her name as county clerk would still appear on the document, thus implying her endorsement or approval of the marriage. Under Kentucky’s statute, the marriage license form includes “an authorization statement of the county clerk issuing the license for any person or religious society authorized to perform marriage ceremonies to unite in marriage the persons named.” Focusing on this, Davis argued that the “authorization statement” constitutes “an endorsement of same-sex marriage, which runs contrary to her Apostolic Christian beliefs,” wrote Judge Bunning.
Governor Steve Beshear had tried to talk her out of this position, and had advised her that if she was unwilling to perform her statutory duties she should resign so that somebody willing to comply with the law could be put in her place. Davis refused, insisting that she intends to serve out the remaining three-and-a-half years of her elected term as county clerk.
As a fallback defense, Davis also argued that requiring Rowan County couples who want to marry to go to a neighboring county did not impose any substantial burden on their newly-proclaimed 14th Amendment right to marry, as weighed against the significant burden on her freedom of religion in requiring her to issue licenses to same-sex couples. She explained that her office had stopped issuing marriage licenses to anybody because she did not want to engage in discrimination against same-sex couples.
Davis was sued in her official capacity for her refusal to issue any marriage licenses, which the plaintiffs alleged “significantly interferes with their right to marry because they are unable to obtain a license in their home county.” Davis countered that they could go to a neighboring county, they could get a license from Judge Blevins, or they might in future be able to get a license on-line, pursuant to a proposal being considered by the legislature to move the licensing process out of the county clerk offices. Judge Bunning rejected these arguments.
Pointing out that the plaintiffs are “long-time residents who live, work, pay taxes, vote and conduct other business in Morehead,” the county seat, they were entitled to prefer to get their licenses locally.
Furthermore, he observed, “there are individuals in this rural region of the state who simply do not have the physical, financial or practical means to travel,” so the office’s refusal to issue any licenses at all would substantially burden some couples who want to marry. The judge also noted that 57 of the state’s 120 elected county clerks had petitioned the governor to call a special legislative session to enact a law allowing them to refuse to issue licenses to same-sex couples. Asked Bunning, “If this Court were to hold that Davis’ policy did not significantly interfere with the right to marry, what would stop the other 56 clerks from following Davis’ approach?” If many county clerks refused to issue licenses, an “inconvenience” could become a “substantial interference” with what the Supreme Court has identified as a “fundamental right.”
Additionally, Bunning agreed with Judge Blevins that Blevins was not authorized by statute to issue marriage licenses in place of Davis when Davis was not “absent” from work, and he concluded further that putting the entire burden for issuing licenses in Rowan County on Judge Blevins, who has many other duties, is not a “viable option.” As to the on-line alternative, Bunning pointed out it was only a proposal and so it did not respond to the present concern.
Bunning found that the state did not have a compelling interest to protect Davis’ free exercise rights that would outweigh the state’s interest in upholding the rule of law, under which the plaintiffs were entitled to get marriage licenses. “Our form of government,” he wrote, “will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions. 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.” Delaying the plaintiffs’ attempts to exercise their fundamental right to marry imposes an irreparable harm on them, the judge found, while he disagreed that requiring the office to issue licenses would impose any substantial harm on Davis.
Bunning also disagreed with Davis’s argument that the authorization statement on the marriage license form implied or communicated that she endorses or approves of same-sex marriage. It is merely a statement that the applicants are legally qualified to marry. Furthermore, he rejected her argument that Governor Beshear’s directive, issued after the Obergefell decision, instructing county clerks to issue licenses to same-sex couples, did not serve a compelling state interest or that she was entitled to a religious exemption from complying with it. Bunning found that Beshear’s directive is a religiously neutral and generally applicable state policy mandating compliance with the law and not singling out religion in any way. “While facial neutrality is not dispositive,” wrote Bunning, “Davis has done little to convince the Court that Governor Beshear’s directive aims to suppress religious practice.”
He also rejected her argument that Attorney General Jack Conway’s decision not to defend the marriage ban in 2014, leaving the governor to hire outside counsel to represent the state before the 6th Circuit, provided some kind of precedent for her seeking an exemption from being required to comply with her job. Bunning rejected her attempt to draw an analogy, seeing Conway’s position as an “exercise of prosecutorial discretion” based on Conway’s announced view that the ban was not defensible in court, which turned out to be correct at the level of the Supreme Court. “By contrast,” Bunning pointed out, “Davis is refusing to recognize the legal force of U.S. Supreme Court jurisprudence in performing her duties as Rowan County Clerk. Because the two are not similarly situated, the Court simply cannot conclude that Governor Beshear treated them differently based upon their religious convictions.”
Davis also attempted to assert a free speech claim under the 1st Amendment, which was quickly disposed of under Supreme Court precedents holding that public employees speaking in their official capacity do not enjoy individual 1st Amendment protection for their speech. After questioning whether the act of issuing marriage licenses can even be characterized as speech, Bunning pointed out that any speech involved in that process (such as the statements on the license form to which Davis objects) is state speech, not Davis’s speech. “The State prescribes the form that Davis must use in issuing marriage licenses,” he wrote. “She plays no role in composing the form, and she has no discretion to alter it. Moreover, county clerks’ offices issue marriage licenses on behalf of the State, not on behalf of a particular elected clerk.” To Bunning, it was clear that the state was not compelling Davis to communicate personal approval of same sex marriages when it requires her to issue licenses. When Davis issues licenses, she is acting as an elected official, not as an individual member of the public.
Bunning also rejected her argument that requiring her to issue licenses imposes a constitutionally forbidden “religious test” for her to be a public employee. “The State is not requiring Davis to express a particular religious belief as a condition of public employment,” he wrote, pointing out that what the state does require is that “all state officials” must “swear an oath to defend the U.S. Constitution.” She swore such an oath when she took office, he wrote, and her refusal to comply with “binding legal jurisprudence” has “likely violated the constitutional rights of her constituents.” Quoting from the Obergefell decision, he wrote, “When such ‘sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty has been denied.’” “Such policies simply cannot endure,” Bunning asserted.
Finally, having concluded that requiring Davis to issue marriage licenses does not substantially burden her free exercise of religion, Bunning rejected her claim to protection under Kentucky’s Religious Freedom Act, which does not grant more protection than the federal Religious Freedom Restoration Act on which it is based. “Davis remains free to practice her Apostolic Christian beliefs,” he wrote. “She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. 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.”
Concluding that it was in the public interest to do so, Bunning issued two orders. First, he ordered that the plaintiffs’ motion for a preliminary injunction be granted. Second, he ordered that “Defendant Kim Davis, in her official capacity as Rowan County Clerk, is hereby preliminarily enjoined from applying her ‘no marriage licenses’ policy to future marriage license requests submitted by Plaintiffs.”
The plaintiffs promptly filed a statement opposing Liberty Counsel’s application to stay Judge Bunning’s order, and the court gave Liberty Counsel a short deadline to respond to the opposition.