Federal court to Kim Davis: File your Kentucky religious exemption claim in Kentucky state court

|The Volokh Conspiracy |


Yesterday, the U.S. Court of Appeals for the Sixth Circuit—which is in charge of appeals from federal courts in Kentucky (among other states)— refused to issue a preliminary injunction in favor of Rowan County Clerk Kim Davis, who doesn't want her name or office listed on Rowan County marriage certificates. For more details on the religious exemption Kim Davis appears to be seeking, see this post; but right now the important conclusion is that her strongest claim, the one under the Kentucky Religious Freedom Restoration Act (RFRA), has to go to state court rather than federal court:

[Kim] Davis maintains that the issuance of marriage licenses to same-sex couples burdens her sincerely held religious beliefs in violation of the U.S. Constitution, the Kentucky Constitution, and the Kentucky Religious Freedom Restoration Act. Davis has not demonstrated a substantial likelihood of success on her federal constitutional claims. We need not address the merits of her claims under Kentucky law because the Eleventh Amendment of the U.S. Constitution precludes the federal courts from compelling state officials to comply with state law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105-06 (1984).

So her federal claims to an exemption are weak—unsurprising, given that the Supreme Court held in Employment Division v. Smith (1990) that the federal Free Exercise Clause generally doesn't mandate exemptions from generally applicable laws. And while her state claims are stronger, since the Kentucky RFRA does authorize courts to sometimes give exemptions from generally applicable laws (again, more here), they need to be addressed to state court judges.