Ky clerk goes to Supreme Court on gay marriage

Rowan County Clerk Kim Davis has asked Supreme Court Justice Elena Kagan to stay enforcement of a federal court ruling requiring Rowan to issue marriage licences to gay couples.

In an emergency application, Davis asks Kagan to delay Judge David Bunning’s order while her appeal is being considered by the U.S. 6th Circuit Court, which refused to issue a stay.

The application was filed with Kagan because she considers such requests from Kentucky and the three other states in the 6th Circuit.

Kagan voted with the 5-4 majority in June that required all states to recognize same-sex marriages.

Davis’ lawyers from the Orlando-based Liberty Counsel said there was at least a “fair prospect” that the 6th Circuit or Supreme Court would reverse Bunning’s ruling.

They also said this is the first test of the rights of public officials since the same-sex marriage ruling and its "far reaching implications across the country for religious liberty,” Davis’ lawyers say.

The gay marriage decision “neither overruled the First Amendment or other critical religious liberty protections for persons nor compelled states to accomplish recognition” of same-sex marriage “by invading and trampling upon the conscience of individual county clerks or other public employees” say Davis’ lawyers.

Repeating arguments they made unsuccessfully before Bunning and the appeals court, the lawyers say the Constitutions of the United States and Kentucky protect Davis' conscience and religious freedom from being coerced to authorize and approve same-sex marriage licenses bearing her name.

“No court … is fit to set the contours of conscience,” the 42-page application says. “For if that were true, a person who religiously objects to wartime combat would be forced to shoulder a rifle regardless of their conscience or be refused citizenship” and “ a person who religiously objects to work on the Sabbath day of their faith would be forced to accept such work regardless of their conscience or lose access to state unemployment benefits.”

Dan Canon, attorney for the two gay and two straight couples who sued Davis when they were denied a license, could not be reached for comment, but he has previously said she will not be able to get a stay.

Reporter Andrew Wolfson can be reached at 502-582-7189 or awolfson@courier-journal.com