The signature of Barbara Fiala appears on my driver’s license. But I have no idea what she thinks of my fitness to operate a motor vehicle in New York State. And who is Barbara Fiala anyway?
As it happens, Ms. Fiala is the former state commissioner of motor vehicles. I Googled her upon reading about an application filed Saturday by Kim Davis with the U.S. Supreme Court. Davis is asking the justices to stay a court order that directs her to issue licenses sought by four couples, including two of the same sex, to marry in Rowan County, Kentucky, where Davis holds the office of clerk, an elected post.
The litigation has its origins in the events of June 26, when, within hours of a ruling by the court that upheld the right of same-sex couples to marry, Governor Steve Beshear directed clerks of counties throughout the Bluegrass State to license the marriages of same-sex couples.
The directive did not sit well with Davis, an Apostolic Christian who believes that marriage represents a union between one man and one woman. Kentucky requires that marriage licenses be signed by a county clerk, an act that Davis charges would violate her faith in applications by same-sex couples.
Davis improvised a way around the directive: She would refrain from issuing any marriage licenses. The betrothed sued, citing the governor’s decree. Judge David Bunning of the U.S. district court in Ashland sided with the couples but postponed the effective data of his ruling until this Monday to give Davis time to appeal. On Wednesday, the U.S. Court of Appeals for the 6th Circuit denied Davis’ request for a stay.
The requirement that clerks affix their names to marriage licenses would constitute a “searing act of personal validation [that] would forever, and irreversibly, echo in her conscience—and, if it happened, there is no absolution or correction that any earthly court can provide to rectify it,” Davis charged in papers filed with Justice Kagan, who oversees emergency appeals from Kentucky.
“A stay of the injunction will halt the irreversible implications on Davis’ conscience while this case undergoes appellate review, especially since multiple less restrictive alternatives are available that do not substantially burden Davis (or the Plaintiffs),” Davis added.
The application characterizes the need for relief as arising from a conflict between the constitutional right of same-sex couples to marry and the free exercise of religion enshrined in the First Amendment. Davis has two choices, she says: affix her name to marriage licenses for same-sex couples, or resign.
Of course, it’s unlikely the governor’s directive or the requirement that clerks in Kentucky affix their names to marriage licenses aim to interfere with religion. A law that punishes conduct just because it is religious is invalid. For example, a municipal ordinance may not prohibit ritual slaughter of chickens while otherwise allowing the slaughter of chickens.
The problem for Davis may be that it’s hard to find such intent behind the implementation of same-sex marriage in Kentucky. State law requires, among other things, that a marriage license bear the name of the county clerk pursuant to whose authority the license was issued. But by its terms the requirement seems to reflect simply that Kentucky has authorized the marriage rather than the beliefs of the clerk whose name happens to appear on the license.
In support of her application, Davis cites the Court’s ruling last year in Burwell v. Hobby Lobby Stores, which found the Affordable Care Act’s mandate that employer-sponsored health plans include coverage for contraceptives to be unlawful because it burdened the exercise of religion by a closely held corporation.
Davis leans on the Hobby Lobby majority’s finding that the health care law’s requirement that employers cover the cost of birth control did not constitute the least restrictive means of serving a compelling government interest, which is a test the court applies to claims the government has engaged in religious discrimination.
As Davis sees it, the state could assure the issuance of marriage licenses to same-sex couples in Rowan County by, among other things, allowing county officials to recuse themselves from issuing licenses based on a sincerely held religious objection, deputizing a clerk from a nearby county to issue marriage licenses to same-sex couples, or revising the form the state uses for marriage licenses to remove the clerk’s name.
“All of the foregoing options, and others, are available to avoid substantially burdening Davis’ personal religious freedom in the wake of the redefinition of marriage in Obergefell,” she writes.
No matter which way the Court rules—the justices can choose not to act and allow Davis to appeal in the normal course, or they can invite a response from the couples who sued—the application highlights one way Hobby Lobby reverberates.
In addition, by framing the problem as an issue of religious conscience rather than one of equal protection of the laws for same-sex couples, Davis advances a line of argument that, as Professor Wendy Brown of UC Berkeley observed in a lecture in July at the London School of Economics, finds its endorsement in the Hobby Lobby ruling.