Time is running out for Rowan County Clerk Kim Davis to resume issuing marriage licenses.
On Wednesday, a three-judge panel of the 6th Circuit U.S. Court of Appeals unanimously denied the stay Davis sought of a lower court's order that will force her to issue marriage licenses despite her religious opposition to same-sex marriage. A temporary delay in that order from U.S. District Judge David Bunning was set to expire Monday.
"It is disappointing, certainly for our client, because the ramifications of the ruling is that there are no religious freedom rights for individuals if you can say a case is just against the office. The problem with that is, individuals who hold public office don't forfeit their constitutional rights," said Mat Staver, chairman of Liberty Counsel, the religious advocacy group representing Davis.
Davis will appeal one more rung up the ladder, to U.S. Supreme Court Justice Elena Kagan, who can intervene in 6th Circuit cases, Staver said.
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Staver and Joe Dunman, a lawyer for a half-dozen Rowan County couples suing Davis, both said it wasn't immediately clear Wednesday when the clerk would be required by the lower court to issue marriage licenses in Morehead or risk contempt charges. The lawyers said they would welcome further instruction from Bunning.
"I honestly don't know where the judge's mind is on this or what he considers a violation," Dunman said. "In my mind, we now have two clear orders saying there is no stay. We think the 6th Circuit made the right call here, obviously."
Davis has refused to issue marriage licenses to anyone for the past two months, following the Supreme Court's decision legalizing same-sex marriage. Davis, an Apostolic Christian, says she objects to authorizing such marriages. Local couples have sued Davis, arguing that her private beliefs should not interfere with the performance of her public duties. The merits of the lawsuit are pending before Bunning.
The case is the first in the country to weigh a public official's freedom of religion against her constituents' right to marry in the wake of the Supreme Court's landmark decision on gay marriage.
"I think at the very least that (Davis) is the first to reach the appellate level," said Carl Tobias, who teaches constitutional law at the University of Richmond in Virginia.
"It's important because, on the one hand, people feel very strongly about their religious freedom," Tobias said. "But they also feel very strongly that if the Supreme Court issues a decision on marriage equality, then local officials should comply with that federal mandate, because otherwise, all of our rights can be violated. So it's a tough question."
Siding with the Rowan County couples, Bunning issued a preliminary injunction against Davis on Aug. 12, ordering her to issue marriage licenses. Bunning denied Davis' request for a formal stay on his injunction, but he agreed to delay it temporarily, until Aug. 31, while she appealed.
In denying Davis' appeal Wednesday, the 6th Circuit panel said that "a state is not permitted to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex, (but) Davis unilaterally decided that her office would no longer issue any marriage licenses."
"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," Judges Damon J. Keith, John M. Rogers and Bernice B. Donald wrote. "There is thus little or no likelihood that the clerk in her official capacity will prevail on appeal."
Davis, a Democrat, began a four-year term as county clerk in January. Staver said he didn't know whether Davis was prepared to go to jail or pay fines rather than obey Bunning's order.
"We haven't talked about that with her," Staver said. "She has always been a law-abiding citizen. She's just caught in a difficult situation here, between her religious beliefs and the Supreme Court decision."