The Fatal Flaw in Kim Davis’s Appeal

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.

Timothy D. Easley / AP

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.

In fact, even if Davis were to come to her senses and comply, there’s another reason why she probably won’t end up in front of the Supreme Court. Davis’s real problem is that, as the case stands now, she is battling against the wrong party.

Let’s understand who’s in court right now. On one side are five same-sex couples who want their licenses in their own county; on the other is Davis, who wants to be free to refuse them and send them elsewhere. There’s no middle ground here—a court could hold for the plaintiffs and order Davis to do her job, or it could hold for Davis and tell the couples to go elsewhere. Those are the only two options.

But as presented by her lawyers, the real fight is between Davis and Steve Beshear, the governor of Kentucky. Immediately after the Court’s decision in Obergefell, Beshear issued an order to the 120 county clerks in Kentucky ordering them to issue same-sex marriage licenses; he also ordered the state’s Department for Libraries and Archives to prepare a new license form using gender-neutral language. Davis’s application for a stay, in effect, asked the Supreme Court to tell the governor that he has misused his authority under Kentucky law, and then order the Kentucky state government to pass new statutes and issue new regulations.

It’s those actions, not the request by the local parties, that Davis argues violate her religious freedom. Not only that, she argues, Beshear went beyond his state-law authority and “effectively commandeered full control of Kentucky marriage law and policy.” Davis wrote a letter to Beshear asking him to call a special session of the legislature, but he didn’t answer. Beshear’s order “imposes a substantial burden” on her religious beliefs; in fact, “by way of Gov. Beshear’s SSM mandate, Davis is being threatened by loss of job, civil liability, punitive damages, sanctions, and private lawsuits.” He is “imposing a direct and severe pressure on Davis by the SSM Mandate.” And thus the governor “must demonstrate by clear and convincing evidence” that his order does not violate the First Amendment and the Religious Freedom Restoration Act.

But Steve Beshear is not before the court right now. On August 4, more than a month after the original case was brought, Davis filed a “third-party complaint” against Beshear, seeking to bring him into the case. That complaint argues that Beshear “has exposed Davis to the Plaintiffs’ underlying lawsuit.” The case could be resolved easily, the application argues, if the governor and the legislature would just change the state statute that requires a county clerk to issue same-sex marriage licenses.

Mark Joseph Stern of Slate recently wrote criticizing her lawyers, the religious-legal charity Liberty Counsel. He called the emergency stay application “an angry, rambling application to the Supreme Court that is little more than an anti-Obergefell rant dressed up as a legal document.”

I’m not sure I agree with that. I do think, as Stern says, that Liberty Counsel made a grievous error in advising Davis to defy the court’s order. And God knows the firm is easy to mock. (Its website features a statement by Davis that “to issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience”—and beneath it, a request for a $25 donation in exchange for a book in which “two nationally-acclaimed real estate entrepreneurs share biblical principles to revolutionize your work and family life, and give you the courage to stand up for what is right.”) But the stay application did a reasonable job of stringing together the Court’s loose rhetoric in Hobby Lobby to support the implausible contention that government officials have a religious right to refuse to serve people they disapprove of.

The real flaw in the stay application is less the substance of its argument, than the fact that the argument is aimed at Beshear. In effect, Davis and her lawyers asked the Court of Appeals, and the Supreme Court, to wade into an ugly political fight about Kentucky law. The Supreme Court may eventually create some exemptions for marriage objectors; that’s not beyond the realm of possibility. But the likelihood that it will tell Beshear and the Kentucky General Assembly what orders and laws they should write is vanishingly small.

If I actually wanted to win a stay of the injunction, I wouldn’t have made those arguments. If I were a clerk or a Justice—however sympathetic to religious freedom I might be—I wouldn’t touch this dog. A good case will come along, with a petitioner who obeys courts and lawyers who know what they’re doing.