A county clerk in Kentucky will not immediately issue marriage licenses to same-sex couples, her lawyer says, despite a federal judge ordering her to do so Wednesday in a case that seeks to reconcile the country’s new marriage law and its protections of religious freedom.
Rowan County Clerk Kim Davis was one of a handful of local elected officials across the country that stopped issuing all marriage licenses after the U.S. Supreme Court legalized same-sex marriage nationwide in June. Two gay couples and two straight couples sued her in federal court in the first lawsuit of its kind in the country.
County clerks issue marriage licenses in Kentucky, but someone else must “solemnize” the marriage before the license can be filed with the county clerk. Davis argued that issuing a marriage license to a same-sex couple that contains her signature is the same as her approving the marriage, which she said violates her Christian beliefs. But U.S. District Judge David Bunning rejected that argument, saying Davis has likely violated the U.S. Constitution’s ban on the government establishing a religion by “openly adopting a policy that promotes her own religious convictions at the expenses of others.”
“Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, particiate 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,” Bunning wrote. “However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.”
Despite the court’s ruling, Davis’ attorney, Roger Gannam, said Davis does not intend to issue any licenses until “we’ve exhausted all of our options to protect her rights.” Gannam filed his notice of appeal about an hour after Bunning’s order.
“This lawsuit has never been about them getting married; they could have done that any time,” he said, suggesting the couples could have gone to the next county and applied for a license there. “This lawsuit is about forcing Kim Davis to violate her religious liberty.”
Laura Landenwich, an attorney for the plaintiffs, said the 28-page ruling reveals that the judge painstakingly combed through each of Davis’ legal arguments and rejected each one. Bunning said that although couples could get marriage licenses elsewhere, “why should they be required to?” He noted the surrounding counties require 30 minutes or one hour of travel and there are many “in this rural region of the state who simply do not have the physical, financial or practical means to travel.”
Bunning said state law does not allow the county judge-executive to issue marriage licenses unless Davis is absent from her job, and Bunning refused to deem Davis absent because she has a religious objection. And Bunning said issuing a marriage license does not constitute speech, saying the marriage license form “does not require the county clerk to condone or endorse same-sex marriage on religious or moral grounds.”
If Davis continues to refuse, and the Court of Appeals declines to issue a stay, Landenwich said they could seek to have her held in contempt of court, which can come with hefty fines or even jail time. Dan Canon, another attorney for the plantiffs, said it was “not surprising” that Davis will not comply with the judge’s order.
“She’s already refused to abide by the order of the Supreme Court and she’s refused a direct order from her executive, who is Gov. (Steve) Beshear,” Canon said. “I’ve certainly never run into anything quite so brazen in my life.”
But Gannam said, “It’s our position that no one has a constitutional right to get a marriage license from any particular person.”
April Miller, one of the plaintiffs, has been engaged to Karen Roberts for 11 years. They were the first couple to be denied in Rowan County and said they plan to return to the clerk’s office soon to get a license.
“We have our rings; we have an officiant. We have talked about food and cake and music and having a big party. We’re excited about it.” she said. “We need a license, and we need a date.”
Galofaro reported from Louisville, Kentucky.
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