A federal judge on Wednesday ordered Rowan County Clerk Kim Davis to resume issuing marriage licenses despite her religious objection to same-sex marriage, but Davis quickly filed an appeal and continued her refusal to issue licenses.
Davis will ask Bunning to stay his injunction while she appeals it to the 6th Circuit U.S. Court of Appeals, said her attorney, Roger Gannam.
On Thursday morning, Rowan County Deputy Clerk Nathan Davis turned away David Moore and David Ermold, refusing to issue the men a marriage license.
"Kim Davis is resolute in vindicating her rights," said Gannam, senior litigation counsel at Liberty Counsel, a religious advocacy group. "Fundamentally, we disagree with this order because the government should never be able to compel a person to violate their sincerely held religious beliefs."
U.S. District Judge David Bunning granted a preliminary injunction against Davis sought by four Rowan County couples who applied for marriage licenses. Davis has refused to issue any marriage licenses in her county since June 26, when the U.S. Supreme Court legalized gay marriage and Gov. Steve Beshear instructed all 120 of Kentucky's county clerks to comply with the court's decision.
Davis "likely has violated the constitutional rights of her constituents" by promoting her Christian beliefs "at the expense of others," Bunning wrote in his order.
"The state is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities," the judge wrote. "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."
The Rowan County couples — two same-sex and two opposite-sex — would have been happy had Davis complied with the injunction, but they expected her to resist further, said one of their attorneys, Laura Landenwich.
"None of us want anyone to be forced to change their religious viewpoint. But when you are an agent of the state, as she is as county clerk, then you need to follow the law," Landenwich said.
In his 28-page order, Bunning considered and dismissed every argument Davis has raised in her defense — and in a related lawsuit she filed last week against Beshear, alleging that he violated her religious liberties by directing county clerks to comply with the Supreme Court decision.
On Davis' argument that she can't in good conscience "authorize" a same-sex marriage, given her beliefs as an Apostolic Christian, Bunning said she was not being asked to authorize marriages. Kentucky's marriage license paperwork requires clerks only to acknowledge that a couple has provided accurate biographical information and is legally permitted to wed, Bunning wrote. And whether or not Davis likes it, same-sex couples now are legally permitted to wed, he wrote.
On Davis' argument that same-sex couples could drive to another county where the clerk is willing to serve them, Bunning said she did not take into account the difficulty of travel for her poorer constituents or the likelihood that other clerks would seek the same religious exemption she demands, so that "approximately half of the state" could declare itself off-limits to gay couples seeking a license.
Beyond all that, Bunning wrote, "she fails to address the one question that lingers in the court's mind. Even if plaintiffs are able to obtain licenses elsewhere, why should they be required to? ... They live, work, socialize, pay taxes and conduct other business in and around Morehead. Quite simply, Rowan County is their home."
Finally, on Davis' argument that Beshear violated her religious liberties by instructing her to comply with the Supreme Court decision, Bunning said the governor had "a compelling state interest" in government officials upholding the rule of law across Kentucky and respecting the First Amendment's separation of church and state.
"Davis has arguably (violated the First Amendment) by openly adopting a policy that promotes her own religious convictions at the expense of others," Bunning wrote.
"Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court's decisions, regardless of our personal opinions," Bunning wrote. "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."