Kentucky, the home of one half of the infamous Hatfield v McCoy battles, has another fight raging and this time it’s in the courts. Following the Supreme Court decision legalizing gay marriage, the clerk of Rowan County, Kim Davis, gained some unwanted national fame when she refused to issue marriage licenses to same sex couples. This happened in a few other places, albeit briefly, but for the most part everyone else has found discretion to be the better part of valor and given up the fight. Davis, however, has not, and is still pursuing her case through the courts. She had been seeking a stay in the order to begin issuing the licenses, but a District Court judge sort of refused the request. I say “sort of” because in one of the stranger things to be seen in a courtroom in recent memory, the judge then turned around and delayed his decision not to delay.
U.S. District Judge David Bunning denied Rowan County Clerk Kim Davis’ request to delay his ruling from last week ordering her to issue marriage licenses to gay and lesbian couples. That ruling followed the U.S. Supreme Court’s decision in June legalizing same-sex marriage nationwide. But Bunning then delayed his own decision, effectively granting Davis’ request while also denying it.
“If the Court decided to delay enforcement of its Order while Davis pursues an unpromising appeal, it would essentially give Plaintiffs a favorable legal ruling with no teeth and prolong the likely violation of their constitutional rights,” Bunning wrote.
But Bunning acknowledged that “emotions are running high on both sides of this debate” and said he would delay his ruling while Davis appeals to the 6th U.S. Circuit Court of Appeals.
I don’t even know what to make of that, but both sides are declaring victory for the moment. However, this still leaves us with the unanswered question of whether or not religious liberty considerations apply to government officials acting in the course of their normal duties. That’s a much easier question for many of us when it applies to the private sector, though liberals have done a stunning job of getting the courts to side with them. If you are a private citizen and small business owner and don’t want to take on a task which would effectively entail your taking part in a wedding ceremony which is contrary to your faith, you shouldn’t have to. That conclusion also factors in the understanding that it’s not exactly difficult to find somebody in the wedding services business who is sympathetic to gay rights. (To put it mildly.) In short, you can always go somewhere else and have your business taken care of.
But what about when you not only work for, but act as the representative of the government? Much like a drivers license or most other government documents, the customer can’t simply go down the street to Bob’s Big House of Licenses and get one there. The government holds an iron clad monopoly on most licenses. (There are exceptions where they farm it out, particularly in the area of hunting and fishing licenses, but that’s the exception rather than the rule.) I’m assuming you can go to the next county over and get a license, but that’s not really the point. The clerk’s office is there to support the citizens of that county and if the law says that licenses must be issued there is an obvious conflict when the clerk herself refuses to do so. (This is different than the situation with judges refusing to perform marriages, as we recently discussed, since that’s an optional side “business” for them.)
It seems unfair to the clerk, but I don’t see how the courts can find in favor of Kim Davis. While it’s a most unsatisfactory answer, I think people in her position will simply have to find other work when this finishes making its way through the appeal process.