In a significant blow to those who seek to use a free exercise of religion argument to discriminate against same-sex couples seeking to marry, U.S. Supreme Court on Monday evening denied an emergency request to stop enforcement of a federal district court order that a Kentucky county clerk resume issuing marriage licenses.
The one-sentence order indicates Justice Elena Kagan, who oversees such requests for cases out of the Sixth Circuit U.S. Court of Appeals, referred the matter to the full court. No justice indicated dissent to the denial of her request, suggesting the religious freedom argument may have a difficult challenge once it reaches the high court.
Attorneys for Rowan County Clerk Kimberly Davis filed their request Friday after being denied the stay by the Sixth Circuit.
Davis still has an appeal before the Sixth Circuit. She is challenging a preliminary ruling in August by a federal district court judge. In a lawsuit filed by the ACLU, U.S. District Court Judge David Bunning (an appointee of President George W. Bush) issued a preliminary injunction ruling prohibiting Davis from continuing her “no marriage licenses” policy, saying it was also unconstitutional.
Davis had ordered her office to stop issuing marriage licenses to any couple –straight or gay— after the U.S. Supreme Court, in June, struck down state bans on marriage for same-sex couples. Davis said it was against her religion to acknowledge marriages between same-sex partners and noted that all marriage licenses issued by the county must carry her signature.
"Expressly to avoid disparate treatment of any couple and ensure that all individuals and couples were treated the same, Davis suspended the issuance of all marriage licenses in Rowan County,” stated the petition to the Supreme Court. “….She instructed all deputy clerks to stop issuing marriage licenses because licenses are issued on her authority, and because every license requires her name to appear on the license as the authorizing person."
Davis describes herself as an Apostolic Christian. According to the denomination’s website, "The New Testament grants believers liberty. However, it also instructs us to not allow our liberty to become a stumbling block for a weaker brother. Since Apostolic Christians are an interconnected brotherhood, we are encouraged to curtail our individual freedoms to benefit the local and national church family."
The conservative Liberty Counsel group is representing Davis in Miller v. Davis, the lawsuit the ACLU initiated on behalf of couples in Rowan County who were refused marriage licenses under Davis’ “no marriage licenses” policy.
Miller v. Davis is believed to be the first lawsuit in the country to test the argument of some same-sex marriage opponents that their First Amendment right to freedom to exercise religion trumps the right of same-sex couples to the 14th Amendment guarantees of equal protection and due process of the law.
In its plea for a stay, the Liberty Counsel stated that Davis "holds an undisputed sincerely-held religious belief that marriage is a union between a man and a woman, only. Thus, in her belief, SSM is not, in fact, marriage. If a SSM license is issued with Davis’ name, authorization, and approval, no one can unring that bell. That searing act of validation would forever echo in her conscience…. If Davis’ religious objection cannot be accommodated…then elected officials have no real religious freedom when they take public office."
Because the Supreme Court denied Davis’ request for a stay, Davis will now have to decide Tuesday whether to continue in her job while she appeals the merits of the preliminary district court ruling.