Kim Davis loses her appeal

|The Volokh Conspiracy |

Kim Davis suffered another legal setback yesterday when the U.S. Court of Appeals for the Sixth Circuit rejected her effort to obtain an injunction against the Kentucky governor seeking additional accommodations of her religious objections to allowing marriage licenses for same-sex couples to be issued from her office. (See Eugene's post here.) This should be no surprise as her federal claims are quite weak.

As Howard Friedman notes at the Religion Clause blog, Davis resumed most of her duties as the county clerk of Rowan County, Ky., on Monday—that is, all of her duties but issuing or authorizing her deputies to issue marriage licenses. Her deputies continued to issue such licenses this week nonetheless, and the governor said the licenses are valid under Kentucky law.

Davis went to the U.S. Court of Appeals for the Sixth Circuit seeking an injunction pending her appeal of the district court's ruling against her. [Marty Lederman has more legal background here.] Among other things, she wants judicial relief from the governor's directive that all county clerks issue marriage licenses to same-sex couples and an order requiring the governor to make further modifications to the marriage license form so that there is not space calling for a reference to her or her office so that the document will bear no indication that it was issued under her authority. This may be what Davis wants, but there's really no basis for any of this in federal law. (Whether there is such a basis for such an accommodation under state law is a separate question, but she would have to pursue that claim in state court, as Eugene Volokh discussed here.)

The Sixth Circuit, in its brief order, did what most legal commentators expected: It concluded that Davis could not show a "substantial likelihood of success" on her federal constitutional claims and concluded that, as a federal court, it lacks the authority to compel a state officer to comply with state law. Neither point is particularly controversial, so this result should not be a surprise.

Davis may try to take this case to the Supreme Court, but it's exceedingly unlikely any such effort will produce a different result. While she may have some state law claims she could pursue in state court, her demand for additional accommodations has no basis in federal law. As I've said before, she should fulfill her duties as a public official or find a new line of work.

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