Kentucky federal court: government clerk must do her job and issue marriage licenses

|The Volokh Conspiracy |

A federal district judge in Kentucky has rejected a county clerk's statutory and constitutional claims that she cannot be required to issue marriage licenses in violation of her religious beliefs. The court granted a preliminary injunction, requested by two same-sex and two opposite-sex couples, ordering her to issue marriage licenses to them. Lawyers for the county clerk, Kim Davis, said she would seek a stay of the decision from the Sixth Circuit (the appellate court that was overruled in Obergefell v. Hodges). At least two same-sex couples were denied marriage licenses today by a relative of Ms. Davis who also works in her office. Reuters reports that Davis is "on vacation."

Kentucky law requires county clerks to issue marriage licenses to eligible couples (a statutory exception allows municipal judges to issue licenses when the clerk is "absent"). Davis objected to the marriages of same-sex couples on religious grounds under her "Apostolic Christian" faith. When same-sex couples applied for marriage licenses after Obergefell, she turned them away and said that the office would no longer issue licenses to anyone. Four of her deputy clerks also objected to same-sex marriages. A fifth was unsure. A sixth deputy clerk in her office was willing to issue the licenses but Davis wouldn't allow that, insisting that this too would violate her religious beliefs because, even though she would not have to sign the document, her name appears on the state-mandated, pre-printed form.

The district court rejected all of her arguments. First, it noted that clerks must issue licenses under state law and so Davis had a legal obligation to issue them. Further, it concluded that there is a fundamental right to marry and that, in her official capacity as County Clerk, Davis is a representative of the government. Through Davis, government itself substantially interfered with the exercise of the plaintiffs' marriage right. Davis responded that the plaintiffs wouldn't be denied their right to marry because they could obtain marriage licenses in other Kentucky counties, including the seven adjacent ones. But the court noted that county residents were entitled to be married in their home jurisdictions, that some county residents would not be able to travel to other counties, and that granting Davis' exemption could start a cascade of opt-out claims from other clerks opposed to same-sex marriages (57 of 120 county clerks throughout the state have called upon the legislature to exempt clerks from issuing licenses).

Davis asserted a right under the Free Exercise Clause to refuse to issue licenses. But since the requirement is a general one and not targeted at religious practices or beliefs, the logic of Employment Div. v. Smith suggests that clerks are not constitutionally entitled to an exemption unless there is no rational basis for the must-issue requirement. (I'll leave aside, as did the district court, consideration of whether Davis might qualify for the "hybrid" claim exception to Smith on the ground that she asserted two constitutional arguments.)

Davis argued further that requiring her to issue the licenses would violate her free speech rights because doing so would compel her to send a message that she approves same-sex marriages. In a brief, Davis' lawyers even argued that "if a SSM license is issued with Davis' name, authorization, and approval, no one can unring that bell. That searing act of validation would forever echo in her conscience." (emphasis added)

What was this searing act of validation? The district court observed: "The form does not require the county clerk to condone or endorse same-sex marriage on religious or moral grounds. It simply asks the county clerk to certify that the information provided is accurate and that the couple is qualified to marry under Kentucky law. Davis' religious convictions have no bearing on this purely legal inquiry."

Further, the court added that to the extent any speech was involved, that speech was the government's own. Government is entitled to choose what messages it will send, including through its functionaries and bureaucrats. The Kentucky governor noted that Davis can resign her post if she objects to the message sent by doing her job.

Finally, Davis invoked the state Religious Freedom Restoration Act, which requires the government to satisfy strict scrutiny when its actions or policies "substantially burden" religion. The district court responded that the burden on Davis was "slight," not substantial, so the state RFRA was not triggered.

The Kentucky case, like several related ones around the country involving public officers, raises larger questions about the obligation of government employees to serve the public despite their personal moral and religious objections. As a matter of policy, states can generally choose to let their employees opt out of performing certain duties, or change their job requirements altogether, or come up with automated methods to serve the public (like online marriage license applications, though I suppose some devout IT professionals might object). Kentucky law, for example, statutorily allows clerks to opt-out of selling hunting and fishing licenses.

But state employees can't opt out of-or be authorized by the state to opt out of-serving the public in ways that would violate the Constitution. For example, under the Equal Protection Clause, a state could not authorize its employees to refuse services on conscience grounds only to Jews, blacks, gays, or same-sex couples. In the Kentucky case, the court concluded that county clerks who refuse to issue marriage licenses violate their own official duties under state law and do so in a way that substantially interferes with the applicants' right to marry. No substitute suggested by the clerk (like sending residents to other counties) was adequate.

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