Rowan gay marriage licenses upheld on appeal

A panel of federal appeals judges refused to overrule a judge's injunction against Rowan County Clerk Kim Davis, who continues to refuse marriage licenses for same-sex couples more than a month after the U.S. Supreme Court found a constitutional right to marry.

Three judges with the 6th U.S. Circuit Court of Appeals denied Davis' request for a stay on Wednesday, writing that her official duties include issuing the forms and that the Supreme Court has already said states cannot bar same-sex couples from marriage.

"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," the judges wrote. "There is thus little or no likelihood that the clerk in her official capacity will prevail on appeal."

Judges Damon J. Keith, John M. Rogers and Bernice B. Donald issued the order.

Citing religious objections, Davis has been turning away all couples since a Supreme Court ruling cleared the way for same-sex marriages nationwide. The ACLU is suing on behalf of several couples who were denied in the days following the decision.

Dan Canon, an attorney for the couples, argued that his clients should, in theory, be allowed to obtain the paperwork immediately. He predicted that applicants will again request licenses at the Rowan County Courthouse on Thursday but wasn't sure if any of his clients would return.

Wednesday's order is "not terribly surprising," he said, calling it "yet another reaffirmation that clerks have to abide by the rule of law just like everybody else.”

The Liberty Counsel, a religious freedom organization representing Davis, plans to request a stay from Supreme Court Justice Elena Kagan as early as Thursday. Kagan, the Justice assigned to the 6th Circuit, ruled with the majority in the gay-marriage case.

Mat Staver, founder and chairman of the group, said attorneys also will seek clarification from the district court on whether Davis must personally issue licenses or if someone else in her office can perform the task. He said he didn't know if Davis will resume providing the forms on Thursday but called it "disturbing" that judges cast doubt on her appeal.

"It suggests that individuals within a government agency don’t have any independent constitutional rights," he said. "They don’t lose their constitutional or statutory rights by virtue of working in a public office."

Canon said he would expect the same ruling from Kagan.

The Liberty Counsel "will very likely use every procedural avenue that they have available to them," he said.

Davis, an Apostolic Christian, argues that signing off on the forms amounts to condoning same-sex marriage and that her objections are protected under the First Amendment and Kentucky's religious freedom law.

However, U.S. District Court Judge David Bunning granted a preliminary injunction against her this month, finding that her religious convictions do not excuse her from performing official duties and upholding her oath of office.

He wrote that the state is not restricting her religious activities or asking her to condone the unions, and he said her beliefs have no bearing on a “purely legal” task. Bunning wrote that the couples have strong ties to the community and an understandable preference to obtain the paperwork there.

Couples have made several attempts to get the forms in Rowan, and at least four were refused after Bunning issued an injunction. Davis was seeking to stay the injunction pending the appeal to the 6th Circuit.

Reporter Mike Wynn can be reached at (502) 875-5136. Email him at mwynn@courier-journal.com.