Religion v. equal protection showdown reaches 6th Circuit

An important showdown between the constitutional rights to religious freedom and equal protection reached a federal appeals court Tuesday (August 18). A county clerk in Kentucky filed an appeal to the Sixth Circuit U.S. Court of Appeals in hopes of securing the right to refuse marriage licenses to same-sex couples.

Rowan County Clerk Kim Davis filed her appeal less than a week after U.S. District Court Judge David Bunning (an appointee of President George W. Bush) ruled that Davis’ strategy of issuing “no marriage licenses” in an effort to avoid issuing them to same-sex couples “likely infringes upon…the fundamental right to marry.” Bunning’s August 12 order prohibited Davis from continuing her policy.

On August 17, Bunning denied Davis’ request that he stay his order pending her appeal of his decision to the Sixth Circuit. But in an unusual move, he granted her a temporary stay until the Sixth Circuit rules on her appeal of Bunning’s denial of the stay. In doing so, Bunning made note of “emotions running high on both sides of the debate.”

The Sixth Circuit is the appeals court whose ruling upholding state bans on same-sex marriage was struck down in June by the U.S. Supreme Court’s ruling in Obergefell v. Hodges.

The Kentucky case, Davis v Miller, is believed to be the first in the country to test the argument of some opponents of same-sex marriage that their First Amendment right to freedom to exercise religion trumps the right of same-sex couples to the 14th Amendment guarantees of equal protection and due process of the law.

The ACLU filed the lawsuit against Davis on behalf of couples who applied for marriage licenses but were refused under a “no marriage licenses” policy Davis adopted June 29 in reaction to the Supreme Court decision June 26. Davis said she adopted the policy because of her “deep religious convictions” against marriage for same-sex couples.

According to the Louisville Courier-Journal, Davis filed a lawsuit against Kentucky Governor Steve Beshear, a Democrat, after he issued an advisory urging all county clerks were to abide by the Supreme Court ruling in Obergefell. That lawsuit reportedly alleges that Beshear’s memo, which his office said was advisory, was “intended to suppress religion.”

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