In June 2015, after the Supreme Court’s decision in Obergefell v. Hodges, which held that same-sex couples have a constitutionally protected right to marry, Rowan County Clerk Kim Davis refused to allow her office to issue marriage licenses to any couple, be they same-sex or different-sex. Davis stated that her religious beliefs forbade her from giving marriage licenses to same-sex couples, so she would not give out any marriage licenses at all. Two same-sex and two different-sex couples filed suit against Davis in federal court, arguing that she had violated their right to marry.
The trial court ruled for the plaintiffs, finding that Davis did not have a free exercise right to avoid doing her job as a county official. The trial court issued a preliminary injunction, forbidding Davis from continuing her “no marriage licenses” policy.
Davis asked for a stay of the preliminary injunction from the U.S. Court of Appeals for the Sixth Circuit. The Sixth Circuit refused to grant the stay. Despite the Sixth Circuit’s order, however, Davis refused to abide by the injunction. The trial court responded by holding her in contempt. As is typical when an individual is held in contempt for violating a court order, Davis was taken into custody and put in jail.
While Davis was in jail, her deputies began issuing marriage licenses to both same-sex and different-sex couplies. The trial court thereafter lifted the contempt order and released Davis from jail, on the condition that she not interfere with her deputies as they issued marriage licenses to the public.
Meanwhile, Davis appealed the trial court’s injunction to the Sixth Circuit. Davis argued that the injunction had substantially burdened her religious exercise rights, which are protected by the Kentucky Religious Freedom and Restoration Act (RFRA) and the First Amendment.
In December 2015, we filed an amicus brief on behalf of the plaintiffs. We argued that the Establishment Clause prohibits Davis, a government official, from refusing to issue marriage licenses due to her personal religious beliefs. We also argued that Davis does not have a religious exercise right to deny the fundamental right to marry to the couples who come to her office.
The Sixth Circuit has not yet issued its decision.