Kim Davis is the Rowan County, Kentucky, clerk who refuses to grant marriage licenses in order to avoid appearing to condone same-sex marriage, which she opposes on religious grounds. Same-sex couples seeking to marry sued Davis, winning a preliminary injunction from Federal District Judge David Bunning last month. Davis sought but failed to obtain emergency relief from the U.S. Court of Appeals for the Sixth Circuit, and earlier this week the Supreme Court of the United States summarily denied her application for a stay. Davis still refused to issue marriage licenses or to resign her post, and so she was jailed for contempt.
With one possible exception that I shall explore below, the courts were right to reject the legal claims put forward by Davis. However, it remains possible that the Kentucky courts may yet rule in favor of people like Davis in future cases by relying on a state law that provides broad protection for religious freedom. With opponents of same-sex marriage increasingly framing their opposition in terms of religious liberty, the Davis case could well be followed by other similar cases in Kentucky and around the country.
Why the Free Exercise Defense Failed
The case against Davis was straightforward. In Obergefell v. Hodges, the Supreme Court ruled that the constitutional right to marry recognized in prior cases going back half a century includes a right of same-sex couples to marry. Kentucky Governor Steve Beshear thereupon informed county clerks throughout the state that they have a duty to grant marriage licenses to same-sex couples, and that if they felt that they could not do so, they ought to resign.
Davis did not resign. Instead, she adopted her own personal policy for the county. She would not grant any marriage licenses, and she would not allow any of her deputy clerks to do so either, even though at least one of them was willing to. Davis believes that even if a deputy clerk issues the license the appearance of her own name and title on the license would amount to participation in same-sex marriage in violation of her religious beliefs. At first, couples in Rowan County were advised to seek licenses from another county official (the “judge/executive”) but that official concluded that so long as Davis holds office, state law does not authorize him to issue marriage licenses in her place.
The various legal filings on behalf of Davis made numerous arguments. The plaintiffs could have gotten marriage licenses from clerks in neighboring counties, her lawyers argued, but the court rightly concluded that they should not have to leave their home county in order to exercise a constitutional right. After all, if a county denied residents some other constitutional right—to freedom of speech, say—it would be no answer to the plaintiffs’ complaint that they can drive half an hour and speak their minds in the neighboring county.
Davis also attempted to invoke her federal constitutional right to free exercise of religion but that argument failed because the obligation to provide marriage licenses to same-sex (and opposite-sex) couples applies to anyone occupying the office of county clerk. Davis was not being singled out because of her religion, and the federal free exercise case law makes clear that it has no application where the burden on religion arises out of a general obligation not targeting religion.
The Dog that Didn’t Bark: The Hobby Lobby Case
What about the Religious Freedom Restoration Act (RFRA)? It provides people with protection for free exercise of religion even when the burden on their religion is not specifically targeted at religion. The federal RFRA originally provided protection against state and local, as well as federally imposed burdens on religion, but the Supreme Court held in 1997 that it was unconstitutional as applied against states and localities. Yet Kentucky, like most states, has its own state RFRA, which the district court acknowledged is modeled on the federal RFRA.
One might wonder whether a state RFRA has any bearing in a lawsuit alleging violations of federal constitutional rights, given that the Constitution’s Supremacy Clause says that federal law trumps state law in a conflict. But Davis was not arguing that the state RFRA excused the state or county from its constitutional obligation to provide marriage licenses in a non-discriminatory manner. She was arguing that state law—insofar as it prevented the state from allowing the judge/executive to provide marriage licenses or to permit a deputy to issue a license that does not bear her name on it—burdened her freedom of religion in violation of the state RFRA. In essence, she was asking the district judge to order some other state or county official to provide same-sex couples in Rowan County with marriage licenses on a non-discriminatory basis and without even the appearance of any participation by Davis.
The district judge rejected the state RFRA defense on the ground that state law imposes only a “slight” burden on her religious freedom because issuing marriage licenses does not “condone same-sex unions on moral or religious grounds, nor” does it prevent “her from engaging in a variety of religious activities” such as church attendance, Bible study, and the maintenance of her belief in the immorality of same-sex marriage. That sounds persuasive, but it is not clear that this is the proper mode of analysis.
Consider the U.S. Supreme Court’s 2014 ruling in the Hobby Lobby case. There the owners of a chain of craft stores objected to complying with the federal statutory obligation to provide their employees with health insurance covering contraception, including methods that they considered religiously forbidden as tantamount to abortion. Justice Alito’s majority opinion simply accepted the store owners’ statement that compliance was inconsistent with their religious beliefs; he deemed the burden substantial because of the serious adverse financial consequences that the store owners would face if they failed to comply with the law.
Applying that logic here, we might conclude that so long as Davis has a sincere religious belief that neither she nor her deputies may issue marriage licenses to same-sex couples, the burden on her religion is substantial because non-compliance with the legal obligation to do so could result in the loss of her job—a serious adverse financial consequence. And so long as the state or county ensures that some other government official is available to provide marriage licenses on a non-discriminatory basis without the appearance of her participation, accommodating Davis would not impermissibly burden the constitutional rights of same-sex (or opposite-sex) couples.
To be sure, some post-Hobby Lobby lower federal court cases cast doubt on whether the mere appearance of Davis’s name on a marriage license issued by a deputy clerk should count as participation by Davis in same-sex marriage. If it does not so count, then state law cannot be said to burden Davis at all, much less substantially.
Moreover, Hobby Lobby involved the federal RFRA. It is possible that the Supreme Court’s approach to determining whether a burden on religion is substantial under that statute should not apply to the construction of the Kentucky RFRA.
But if so, it is not clear why. Nor is it clear that the lower federal court cases defining substantial burden to exclude something like having one’s name appear on a form would be approved by the Supreme Court. Less than a week after it decided Hobby Lobby, the Supreme Court issued an order in the Wheaton College case that appeared to accept a religious claimant’s broad view of religiously-forbidden participation in a government program.
In the Davis case, the federal district judge did not cite or discuss Hobby Lobby, Wheaton College, or any Kentucky cases addressing how to determine whether a burden counts as substantial. Perhaps in some future case, the Supreme Court of Kentucky will endorse a broader reading of the state RFRA. In the course of adjudicating federal issues or when hearing cases between citizens of different states, federal courts have the power to resolve issues of state law, but their rulings on such matters are not binding on non-parties or state courts. The state’s highest court is the final authority on the meaning of state law.
Thus, it remains possible that in some future case involving a different county clerk or other government official the Kentucky Supreme Court will take a broader view of what counts as a substantial burden under the state RFRA. And even if the Kentucky courts do not follow that path, other state courts might interpret their state RFRAs broadly. Davis lost and sits in jail, but her case may yet prove a harbinger of litigation to come.