The same-sex marriage protest of Rowan County Clerk Kim Davis, which has drawn national attention to Kentucky, is entering its endgame.
On Friday, Davis filed an emergency application to the U.S. Supreme Court asking for a stay in the Aug. 12 injunction handed down by U.S. District Judge David Bunning that ordered her to resume issuing marriage licenses. Citing religious objections, Davis has refused to issue any marriage licenses since the high court legalized gay marriage two months ago.
"The same-sex marriage mandate demands that she either fall in line, her conscience be damned, or leave office, her livelihood and job for three decades in the clerk's office be damned," wrote Jonathan Christman, an attorney with Liberty Counsel, the religious advocacy group representing Davis.
Also Friday, Bunning refused to extend a temporary stay in his injunction, set to expire Monday, that he had allowed Davis while she appealed.
And Rowan County Attorney Cecil Watkins said he asked Attorney General Jack Conway to appoint a special prosecutor to determine if Davis is guilty of official misconduct, a misdemeanor, for failing to perform her public duties. If convicted of first-degree official misconduct, Davis could be jailed up to a year and fined up to $500.
Watkins said he acted at the request of two local men, James Yates and William Smith Jr., who were turned away Thursday by Davis' office when they tried to get a marriage license.
Watkins declined to offer his own legal opinion about Davis' actions, citing the potential conflict that he represents Rowan County.
"If whomever receives this case decides that she is not doing her duty, then she has a problem," he said.
Leland Hulbert, a Conway spokesman, said late Friday that he could not confirm whether the attorney general's office had received Watkins' written request.
Davis, a Democrat, started a four-year term in January. More than a half-dozen local couples are suing her, arguing that her private beliefs should not outweigh her responsibility to perform her public duties.
The 6th Circuit U.S. Court of Appeals on Wednesday denied Davis' previous request for a stay in Bunning's injunction, saying "there is little or no likelihood" the clerk "will prevail on appeal."
Bunning and the 6th Circuit both erred and infringed on Davis' religious liberty, Davis' attorneys told the Supreme Court in her application. Moreover, they said, "this first-in-the-nation case" regarding a public official's rights and duties under the landmark gay marriage ruling gives the Supreme Court an important chance to clarify the law.
"This case raises fundamental religious liberty, conscience and speech issues ... (such as) whether publicly elected officials possess individual free exercise and religious accommodation rights while holding public office, or whether they may be compelled to affix their individual name and endorsement to marriage licenses in violation of their religious beliefs," Christman wrote.
Davis' application was made to Elena Kagan, the associate justice assigned to oversee the 6th Circuit, which is comprised of Kentucky, Tennessee, Ohio and Michigan. Kagan, appointed to the court in 2010 by President Barack Obama, was one of the five justices to vote with the majority legalizing same-sex marriage this summer.
The Supreme Court issues a stay in lower court orders only if a reasonable probability exists that four of the nine justices will consider the issue worthy of their attention; there is a fair prospect a majority of the court will vote to reverse the lower court; and there is a likelihood of irreparable harm that would result if the stay was denied.
In their own filing Friday, urging Bunning to enforce his injunction, lawyers for the Rowan County couples said Davis will fall short of that three-point test.
"In rejecting Davis' stay request, the 6th Circuit noted that '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,'" wrote William Sharp, legal director of the ACLU of Kentucky.
"Because Davis has presented nothing to suggest that the Supreme Court's even more stringent standard for granting a stay is likely to result in a different outcome from that of the 6th Circuit, plaintiffs ask that the motion be denied."