A Kentucky county clerk who has refused to issue any marriage licenses since the Supreme Court legalized same-sex marriage nationwide in June lost an appeal of her case in the Sixth Circuit yesterday. The federal appeals court held that the clerk, Kim Davis, cannot cite her personal religious views as a reason to stop a government office from performing its duties.
Mat Staver, the Liberty Counsel head who is representing Davis and encouraging other officials to commit anti-gay civil disobedience, told the Lexington Herald-Leader that he will now take Davis’ case to the Supreme Court:
“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.
While Staver claims that the clerk’s “constitutional rights” are being violated when she is required to perform her job duties, the appeals court points out that this is not a case of individual free speech: “[W]here a public employee’s speech is made pursuant to his duties, ‘the relevant speaker [is] the government entity, not the individual.’”
As the County Clerk for Rowan County, Kentucky, Davis’s official duties include the issuance of marriage licenses. In response to the Supreme Court’s holding in Obergefell v. Hodges, (2015), 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,” Davis unilaterally decided that her office would no longer issue any marriage licenses.
The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity. The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, 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. There is thus little or no likelihood that the Clerk in her official capacity will prevail on appeal. (emphasis added)