FRANKFORT, Ky. – Two months after it legalized gay marriage nationwide, the U.S. Supreme Court is being asked by a Kentucky county clerk for permission to keep denying marriage licenses to same-sex couples.
Rowan County Clerk Kim Davis, who objects to gay marriage for religious reasons, asked the nation's highest court Friday to grant her "asylum for her conscience."
The Supreme Court ruled in June that the Constitution guarantees gay people the right to marry. But Davis contends the First Amendment guarantees her the right of religious freedom.
She stopped issuing all marriage licenses in the days after the Supreme Court's landmark decision. Two gay couples and two straight couples sued her, arguing that she must fulfill her duties as an elected official despite her personal Christian conviction. A federal judge ordered Davis to issue the licenses and an appeals court upheld that decision.
Davis' lawyers said they filed an emergency appeal with the Supreme Court Friday, asking that they delay the mandate to issue licenses until her appeal is finished, a process that could stretch for months.
Forcing her to abandon her Christian principles and issue licenses could never be undone, her attorney, Jonathan D. Christman, with the Christian law firm Liberty Counsel, wrote the court. He compared it to forcing a person who objects to war into the battlefield, or forcing a person who opposes capital punishment to carry out an execution.
"That searing act of personal validation would forever, and irreversibly, echo in her conscience — and, if it happened, there is no absolution or correction that any earthly court can provide to rectify it," he wrote.
The couples could easily drive to a nearby county to get a marriage license, Davis argued. But the couples counter that they have a right to get a marriage license in the county where they live, work and pay taxes.
Davis' case will fall to Sixth Circuit Justice Elena Kagan, a liberal judge who joined the majority opinion in legalizing gay marriage. Kagan could reject it outright in a matter of days, or she could ask the couples' attorneys to file a response and refer it to court for review.
Dan Canon, an attorney representing the couples, called Davis' latest challenge "meritless."
"We've already had four federal judges speak very clearly on this particular issue, and I don't anticipate the response from Justice Kagan is going to be any different," Canon said. "Each time we get an opinion on this case, it's a reaffirmation of what is a core tenant of American democracy: an elected politician can't govern an entire county according to his or her own private religious beliefs. They have to follow the law."
University of Louisville law professor Sam Marcosson said he believes Kagan will deny Davis, and the question will quickly become what the clerk will decide to do under threat of a contempt of court charge, which can carry steep fines or jail time.
Davis has said she will not resign from her $80,000-a-year job, and vowed that she will never license a same-sex marriage. She has turned couples away for two months, in defiance of a series of court orders.
Davis cannot be fired because she is an elected official. The Legislature could impeach her, but that is unlikely given that many state lawmakers share her beliefs. The Republican president of the state Senate spoke at a rally last week in support of Davis.
The gay couples that sued her could ask U.S. District Judge David Bunning to hold Davis in contempt. That would trigger another court hearing and would likely include testimony from Davis herself. The judge could then order hefty fines or even put her in jail until she complies with the order.
Davis also asked Bunning on Friday to give her more time to continue her appeals. He rejected her request.
Several couples said they plan to return to the courthouse next week to try again for a license. For some, it will be their fourth attempt.
"This has been an emotional roller coaster for our clients," Canon said. "We've won every step of the way. And we don't expect that to change. But even still they have not been able to get their marriage licenses."