Supreme Court Refuses To Stay Order Requiring Kentucky Clerk To Issue Same-Sex Marriage Licenses

The U.S. Supreme Court yesterday in Davis v. Miller denied an application (full text of order) to stay pending appeal a district court decision requiring a Kentucky count clerk to issue marriage licenses to same-sex couples.  The clerk, Kim Davis, has religious objections to same-sex marriage. The application made to Justice Kagan was referred by her to the full Court which denied the stay. New York Times reports on the Supreme Court's decision.

6th Circuit Refuses To Stay Injunction Against Recalcitrant Kentucky County Clerk

In Miller v. Davis, (6th Cir., Aug. 26, 2015), the U.S. 6th Circuit Court of Appeals refused to grant a stay pending appeal of a preliminary injunction (see prior posting) issued against a Rowan County, Kentucky, Clerk who has religious objections to issuing marriage licenses to same-sex couples.  The 6th Circuit explains:

As the County Clerk ..., Davis’s official duties include the issuance of marriage licenses. In response to the Supreme Court’s holding in Obergefell v. Hodges ..., Davis unilaterally decided that her office would no longer issue any marriage licenses. According to Davis, the issuance of licenses to same-sex marriage couples infringes on her rights under the United States and Kentucky Constitutions as well as the Kentucky Freedom Restoration Act.... The Rowan County Clerk’s office has since refused to issue marriage licenses to the plaintiffs, and this action ensued.

The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity. The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.....

USA Today reports on the decision. [Thanks to Tom Rutledge for the lead.]

UPDATE: On Thursday, Davis' office continued to refuse to issue a marriage license to a same-sex couple, arguing that the district court's stay remains in effect until Aug. 31.  The district court stayed its preliminary injunction until Aug. 31 or the 6th Circuit issued a ruling. On Thursday afternoon, the clerk's office was temporarily closed for "computer upgrades." Davis is considering filing an appeal with the U.S. Supreme Court. (CBS News).

Kentucky Clerk, Continuing Fight Against Issuing Marriage Licenses To Same-Sex Couples, Gets Short Reprieve

Rowan County, Kentucky Clerk Kim Davis is continuing her battle to obtain a religious exemption from the requirement that her office issue marriage licenses to same-sex couples.  As previously reported, last week a federal district court issued a preliminary injunction requiring her to end her resistance, at least as to the two same-sex couples suing her.  Davis' office has been refusing to issue marriage licences to anyone.  Yesterday in Miller v. Davis, (ED KY, Aug. 17, 2015), the district court refused to stay its injunction while an appeal to the 6th Circuit plays out.  The court found that Davis is not likely to succeed on the merits in the appeal nor is she likely to suffer irreparable harm without a stay. However the court did grant a shorter stay. The court said "realizing that emotions are running high on both sides of the debate," it would grant a stay while Davis appeals the denial of a longer stay during the appeal.

The Lexington Herald-Leader reports on these developments and reactions to them:

"Here in Morehead, we have a fairness ordinance (protecting the civil rights of gays and lesbians) that our city council passed unanimously in 2013," said Mary Hargis, a retired state worker holding a sign that read "Obey the law."

"So to have a county official on her own turn around and negate all that progress by making us look like backward, inbred hillbillies, she's just reinforcing all the stereotypes people had about us...

[Thanks to Tom Rutledge for the lead.]

UPDATE: On Aug. 19, the district court, saying the Federal Rules of Appellate Procedure require it to set an expiration date, issued an order (full text) providing that the stay it issued two days earlier will expire on Aug. 31 unless the 6th Circuit orders something else.

Kentucky Clerk Continues To Refuse To Issue Marriage Licenses, Despite Injunction

Continuing to maintain her religious objections to issuing marriage licenses to same-sex couples, Rowan County, Kentucky Clerk Kim Davis yesterday filed with the federal district court a motion (full text) to stay the court's Aug. 12 preliminary injunction pending appeal. (See prior posting.) Meanwhile, as reported by AP, Davis' office continued to refuse to issue marriage licenses. Staff said Davis was on vacation, and others in the office also authorized to issue licenses refused to do so.  The staff handed one couple a Post-it note with the phone number of Davis' lawyers, Liberty Counsel. Attorneys for plaintiffs in the case are considering asking the court to hold Davis in contempt.

Court Says Kentucky Clerk Cannot Refuse To Issue Marriage Licences

In Miller v. Davis, (ED KY, Aug. 12, 2015), a Kentucky federal district court granted a preliminary injunction barring Rowan County, Kentucky Clerk Kim Davis from continuing her policy of refusing to issue all marriage licenses because of her religious objections to issuing licences to same-sex couples.  The injunction enjoins Davis from applying the policy to future marriage license requests submitted by plaintiffs in the case.

Rejecting free exercise, free speech, religious test and Kentucky Religious Freedom Act arguments, the court held:

Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.

The Kentucky ACLU issued a press release announcing the decision.  AP reports on the decisionl  Davis immediately filed a Notice of Appeal (full text). [Thanks to Tom Rutledge for the lead.]

Kentucky County Clerk Files Third-Party Complaint Against Governor In Battle Over Same-Sex Marriage Licenses

As previously reported, in July the Kentucky ACLU filed a federal class-action lawsuit against Rowan County Clerk Kim Davis who is refusing to issue marriage licences to anyone because of her religious objections to issuing them to same-sex couples. On Tuesday, Davis responded by filing a third-party complaint in the suit against Kentucky Governor Steven Beshear as well as the state official responsible for marriage license forms.  Her third-party complaint (full text) in Miller v. Davis, (ED KY, filed 8/4/2015) alleges in part:

The Commonwealth of Kentucky, acting through Governor Beshear, has deprived Davis of her religious conscience rights guaranteed by the United States and Kentucky Constitutions and laws, by insisting that Davis issue marriage licenses to same-sex couples contrary to her conscience, based on her sincerely held religious beliefs. Because of Governor Beshear’s open declaration that Davis has no such rights, Governor Beshear has exposed Davis to the Plaintiffs’ underlying lawsuit, in which the Plaintiffs claim a constitutional right to a Kentucky marriage license issued specifically by Davis. Governor Beshear is not only liable to Davis for Plaintiffs’ claims, but is also obligated to effect Kentucky marriage licensing policies that uphold Davis’s rights of religious conscience.

Liberty Counsel issued a press release announcing the filing of the complaint. AP reports on the filing.

Second Suit Filed Against Kentucky Clerk Who Is Refusing To Issue Marriage Licenses

As previously reported, earlier this month the ACLU filed a class action lawsuit in federal court against  Rowan County, Kentucky, Clerk Kim Davis who is refusing to issue marriage licences to anyone because of her religious objections to issuing them to same-sex couples. According to the Lexington Herald-Leader, Davis, who is represented by by the advocacy group Liberty Counsel, did not appear in court at yesterday's scheduled hearing because she has not yet been served with a summons.  Meanwhile a second suit was filed against Davis last Friday by a same-sex couple who were denied a marriage license.  The complaint (full text) in Ermold v. Davis, (ED KY, filed 7/10/2015), alleges that plaintiffs were denied a marriage license  by Davis' office based upon Davis' "understanding of Adam, Eve, and the origins of man as set forth in the Old Testament." The couple's video of their attempt to apply for a license, posted on YouTube, has been viewed over 1.7 million times. The suit has been assigned to U.S. District Judge David Bunning who is also hearing the ACLU challenge.  Bunning says he will probably consolidate the two cases. [Thanks to Tom Rutledge for the lead.]

ACLU Sues Kentucky Clerk Who Is Refusing To Issue Marriage Licenses

Yesterday the Kentucky ACLU filed a federal class-action lawsuit against Rowan County Clerk Kim Davis who is refusing to issue marriage licences to anyone because of her religious objections to issuing them to same-sex couples. (ACLU press release). The complaint (full text) in Miller v. Davis, (ED KY, filed 7/2/2015) alleges that Davis' refusal "constitutes a substantial, direct and continuous infringement upon Plaintiffs’ fundamental right to marry," as well as amounting to a violation of the Establishment Clause. AP reports on the lawsuit.

Biblical Theme Park To Sue Over Denial of Tax Rebates

Answers in Genesis announced this week that it plans to file a federal lawsuit challenging Kentucky's refusal to allow its planned Ark Encounter theme park to participate in the state's tax rebate incentive program. In December, the state reversed an earlier preliminary decision to allow the Noah's Ark theme park some $18 million in sales tax rebates in a program designed to promote Kentucky tourism. The state said that the park had evolved from a tourist attraction into a project to promote a literal reading of the Biblical book of Genesis. It also objects to the park's plan to hire only Christians. (See prior posting.) The lawsuit will contend that the state's action amounts to unconstitutional viewpoint discrimination.

Kentucky Legislature Hearing Rooms Now Have "In God We Trust" Signs

In Kentucky, state officials have hung eleven "In God We Trust" signs in committee rooms in the state Capitol building and Capitol annex.  According to AP, the signs-- paid for with private donations-- were authorized by legislation enacted earlier this year. Similar signs already hang in the House and Senate chambers.  Sen. Albert Robinson, sponsor of the legislation authorizing the signs, said: "This is America. I feel like this nation was and is established by God.  We need to show the same respect in the committee rooms that we show in the Senate and House chambers." The signs put up in the committee rooms are temporary ones, because the permanent ones would not be ready by the time the legislature reconvenes on Jan. 6.

Kentucky Supreme Court Defines Ecclesiastical Abstention Doctrine

In St. Joseph Catholic Orphan Society v. Edwards, (KY Sup. Ct., Dec. 18, 2014), the Kentucky Supreme Court redefined the operation of the "ecclesiastical abstention doctrine" under Kentucky law. The Court held that the doctrine is not a bar to jurisdiction, but instead operates as an affirmative defense designed to allow both churches and other religious organizations independence from secular control.  At issue in the case was a challenge by a group of St. Joseph Home alumni to the action at an annual meeting of members taken after the existing Board had been unable to muster a high enough vote to remove one of its own members accused of harassing employees.  By a resolution passed overwhelmingly, the members replaced the existing Board members and amended the bylaws to add protections against Board-member misconduct. The Court concluded that a challenge to this action involves an issue of ecclesiastical governance that is covered by the ecclesiastical abstention doctrine, and so remanded the case to the trial court for dismissal.

The practical effect of the court's procedural holding is that in the future defendants will be able to file an interlocutory appeal when a trial court refuses to apply the ecclesiastical abstention doctrine, instead of proceeding as in this case by seeking a writ of prohibition from the Court of Appeals.

Meanwhile, it appears that while the Supreme Court's decision on issuing a writ of prohibition was pending, the trial court went on with the case.  WDRB reports that on Dec. 10, the trial court dismissed the challenge to the action at the annual meeting because the ousted trustees had an opportunity to attend a second meeting at which the bylaw amendments were to be reconsidered, and they chose not to attend. This report also sheds more light on the nature of the leadership contest:

The lawsuit pitted a largely aging group of trustees – among them former residents of the Frankfort Avenue orphanage -- against a younger faction with corporate ties.

[Thanks to Tom Rutledge for the lead.]

6th Circuit Upholds Same-Sex Marriage Bans

In DeBoer v. Snyder, (6th Circuit, Nov. 6, 2014), in a 2-1 decision, the U.S. 6th Circuit Court of Appeals today became the first federal circuit court to uphold state bans on same-sex marriage and on recognition of same sex-marriages performed elsewhere.  Departing from decisions by the Fourth, Seventh, Ninth and Tenth Circuits, the court upheld state statutory and constitutional provisions from Michigan, Ohio, Kentucky and Tennessee. Judge Sutton, writing for the majority, summarized his approach:

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.

Judge Daughtry dissenting said in part:

In the main, the majority treats both the issues and the litigants here as mere abstractions.  Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status....

SCOTUSblog reporting on the 6th Circuit's decision speculated that the split among circuits that it creates is likely to lead to Supreme Court review unless en banc review from the 6th Circuit is sought and granted.

Court Enters Settlement Order In Dispute Over State Funding To Religious Child-Care Facility

In Pedreira v. Sunrise Children's Services, Inc., (WD KY, June 30, 2014), a Kentucky federal district court entered an order incorporating terms of a settlement between the parties in an Establishment Clause lawsuit, and retained jurisdiction to enforce the order. At issue was the long-running controversy over the state of Kentucky's funding treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization. The settlement requires the state to modify its contracts with child care agencies so that the religious affiliation or non-affiliation of children is respected. (See prior related posting.) The court rejected challenges by Sunrise to the settlement:

Sunrise urges that the Agreement will subject it to a “Hobson’s Choice” – That is, it will have to choose either to accept terms in new PCC agreements which it finds objectionable, or forego contracts with the Commonwealth which provide essential funding for its continued operation. As aptly stated by the Commonwealth defendants however, this is not a “Hobson’s Choice;” it is a business choice....  Sunrise does not suggest that the Commonwealth does not have the right to add to or alter the terms of its future PCC contract offerings, with or without this settlement.

Americans United issued a press release announcing the court's action. AP reports on the decision.

Court Invalidates Kentucky's Same-Sex Marriage Ban; Stays Order

In Love v. Beshear, (WD KY, July 1, 2014), a Kentucky federal district court held that Kentucky's statutory and constitutional provisions barring same-sex marriage violate the 14th Amendment's Equal Protection clause and are unenforceable. Judge Heyburn wrote in part:

in America even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted. 

However, the court stayed its order until further order of the 6th Circuit Court of Appeals.  The same court earlier this year held that Kentucky must recognize valid same-sex marriages performed elsewhere. (See prior posting.) Washington Post reports on yesterday's decision. [Thanks to Tom Rutledge for the lead.]

Kentucky City Passes Ordinance Barring LGBT Discrimination, But With Broad Exemption For Faith-Based Institutions

According to Central Kentucky News, on Monday night, the Danville, Kentucky City Commission, by a vote of 4-1, adopted an ordinance barring discrimination on the basis of sexual orientation or gender identity, but with a broad exclusion for all "faith-based institutions."  An earlier version of the ordinance would not have excluded faith-based institutions that receive a majority of their funding from government agencies.  However last month after Sunrise Children's Services which receives 80% of its funding from the government threatened to sue, Council came up with the new draft containing the broader exemption.  An attempt to go back to the initial version was defeated on Monday by a vote of 3-2.  Mayor Bernie Hunstad, who voted against the final version as well, said that he objects to special protection for individuals "who chose to make an unconventional choice in their method of sexual practices."

Kentucky Supreme Court Fleshes Out The Ministerial Exception Doctrine

In two cases decided earlier this week, the Kentucky Supreme Court clarified the ministerial exception doctrine.  In Kirby v. Lexington Theological Seminary, (KY Sup. Ct., April 17, 2014), Jimmy Kirby, a tenured professor teaching Christian social ethics at Lexington Theological Seminary had his employment terminated as part of the seminary's response to a financial crisis it was facing. Kirby sued claiming race discrimination and breach of contract. The court held that the race discrimination claim was barred by the ministerial exception doctrine, saying:

we explicitly adopt the ministerial exception as applicable to employment claims—especially discrimination claims—asserted against a religious institutional employer by an employee who is directly involved in promulgating and espousing the tenets of the employer's faith.....

From a broad perspective, the ministerial exception does not strip a court of its jurisdiction but, instead, simply disallows the forward progress of the particular suit. The ministerial exception's very name inherently suggests it does not operate as a jurisdictional bar. It is an exception, not an exemption.  Most likely, a great deal of the current disagreement over the ministerial exception's proper operation stems from the conflation of the ministerial exception with the broader principle of ecclesiastical abstention. Secular courts do not have jurisdiction to hear disputes over church doctrine. But courts do have jurisdiction to hear and resolve employment disputes, contract claims, tort claims, or similar. And that authority is not lost as a result of the ministerial exception.

However the court permitted Kirby to proceed with his claim that his dismissal violated his contractual rights as a tenured professor:

Although state contract law does involve the governmental enforcement of restrictions on a religious institution's right or ability to select its ministers, those restrictions are not governmental restrictions. Simply put, the restrictions do not arise out of government involvement but, rather, from the parties to the contract, namely, the religious institution and its employee. 

Contractual transactions, and the resulting obligations, are assumed voluntarily. Underneath everything, churches are organizations. And, like any other organization, a "church is always free to burden its activities voluntarily through contracts, and such contracts are fully enforceable in civil court."  Surely, a "church can contract with its own pastors just as it can with outside parties."  "Enforcement of a promise, willingly made and supported by consideration, in no way constitutes a state-imposed limit upon a church's free exercise rights."

In a companion case, Kant v. Lexington Theological Seminary, (KY Sup. Ct., April 17, 2014),  Laurence Kant, another tenured professor who was terminated at the same time, also sued for breach of contract.  The Court held that Kant, a Professor of History of Religion who was Jewish, was not a "minister" for purposes of the ministerial exception doctrine:

we find it important to emphasize the connection between the religious institution's employee and the doctrine or tenets of the religious institution. A minister, in the commonly understood sense, has a very close relationship with doctrine of the religious institution the minister represents. The members of the congregation or faith community view a minister as one who is, among other things, the face of the religious institution, permitted to speak for the religious institution, the embodiment of the religious institution's tenets, and leader of the religious institution's ritual.  Kant did none of these things....

[T]he simple fact that an employee professes a different religious belief system than his religious institutional employer does not eliminate the employee as a ministerial employee under the law. The primary focus under the law is on the nature of the particular employee's work for the religious institution. Here, Kant's work was chiefly secular.

Court Grants Stay Pending Appeal In Kentucky Same-Sex Marriage Case

In Love v. Beshear, (WD KY, March 19, 2014), a Kentucky federal district court granted a stay pending appeal to the 6th Circuit of its prior decision requiring recognition of same-sex marriages validly performed in other states. Previously the court had stayed its order only until March 20. (See prior posting.)  The state argued that failure to extend the stay would result in "chaos."  In granting the further stay pending appeal, the court found persuasive arguments on both sides, but said that it was strongly influenced by the U.S. Supreme Court's action in granting a stay in the Utah same-sex marriage case.  The district court said in part:

Perhaps it is difficult for Plaintiffs to understand how rights won can be delayed. It is a truth that our judicial system can act with stunning quickness, as this Court has; and then with sometimes maddening slowness. One judge may decide a case, but ultimately others have a final say. It is the entire process, however, which gives our judicial system and our judges such high credibility and acceptance.... It is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well.

Louisville Courier-Journal reports on the decision. [Thanks to Tom Rutledge for the lead.]

Kentucky Baptists Use Second Amendment Themes To Reach the Unchurched

The Louisville Courier Journal last week reported on the Kentucky Baptist Convention's (KBC) effort to reach unchurched men through "Second Amendment Celebrations."  Guns are given away as door prizes at the events at which speakers focus on hunting and opposition to gun control. KBC spokesman Roger Alford described the controversial events as "outreach to rednecks." He explained:

The day of hanging a banner in front of your church and saying you’re having a revival and expecting the community to show up is over.... You have to know the hook that will attract people, and hunting is huge in Kentucky. So we get in there and burp and scratch and talk about the right to bear arms and that stuff..... We have found that the number of unchurched men who will show up will be in direct proportion to the number of guns you give away.

Reportedly 1,678 men made "professions of faith" at 50 such events last year.

Kentucky To Hire Outside Counsel To Defend Its Refusal To Recognize Same-Sex Marriages, Over AG's Dissent

As previously reported, last month a federal district court ordered Kentucky to recognize same-sex marriages performed in other jurisdictions. The state quickly however filed a motion asking for a stay while it considered its options, and last Friday the court granted a stay until March 20. (Louisville Courier Journal). As reported by AP, yesterday Kentucky Attorney General Jack Conway announced that he will not appeal the decision or seek further stays. In a statement (full text) posted on the Attorney General's website, he said that the federal court's decision was correct and that he should not be wasting state resources on a case the state is unlikely to win.  He added that he "came to the inescapable conclusion" that defending Kentucky's refusal to recognize same-sex marriage would be defending discrimination. However moments after the Attorney General's announcement, Kentucky Governor Steve Beshear announced (full text) that the state will hire other counsel to seek a further stay and pursue an appeal to the 6th Circuit in order to "bring certainty and finality to this important matter." [Thanks to Tom Rutledge for the lead.]

Court Issues Final Order On Recognition of Out-of-State Same-Sex Marriages In Kentucky; Intervenors Pursuing Additional Relief

As previously reported, earlier this month a Kentucky federal district court issued an opinion holding unconstitutional Kentucky provisions that deny recognition to same-sex marriages performed in other jurisdictions. As reported by the Louisville Courier Journal and Insider Louisville, after a hearing on Tuesday, the court issued its final order (full text) implementing the decision (Bourke v. Beshear,  (WD KY, Feb. 27, 2014)). At the hearing, the deputy attorney general told the court that he did not have authority at that time to ask for a stay of the decision, and the court's final order thus did not contain a stay pending appeal. However the state subsequently quickly filed a motion (full text) asking for a 90-day stay to "give Defendants time to determine if they will appeal the order, and the Executive Branch time to determine what actions must be taken to implement this Court’s Order if no appeal is taken."

Meanwhile, the court yesterday also allowed (full text of order) two other couples to intervene in the case to pursue their claims (full text of intervenors' complaint) that Kentucky laws banning the issuance of marriage licenses to same-sex couples are also unconstitutional. [Thanks to Tom Rutledge for the lead.]