The tension between religious liberty and same-sex marriage may eventually come to a head in the courts, but probably not through the Kentucky clerk’s case.
As Rowan County clerk Kim Davis crawls further and further out on a limb, Supreme Court experts agree that she has little chance of prevailing. District Judge David Bunning, on August 12 ordered Davis, in her capacity as county clerk, to issue marriage licenses to all couples who meet the statutory criteria for marriage in Kentucky—a definition that, since the Court’s landmark decision in Obergefell v. Hodges, includes same-sex couples.
Davis has refused, citing “the authority of God.” The U.S. Supreme Court, without comment, denied her emergency request for a stay. This throws the case back to the Sixth Circuit, which will hear the appeal of Judge Bunning’s order. Assuming she loses in the Sixth Circuit—a fairly good assumption—she would then have the alternative of petitioning the Supreme Court to hear her religious freedom claim. The Court will eventually hear a case about religious freedom and same-sex marriage, but I don’t think it will be this one.