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Defiant County Clerk's Chances of Winning Same-Sex Marriage Case Narrowing

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A federal appeals court on Wednesday ordered Rowan County Clerk Kim Davis to resume issuing marriage licenses while a lawsuit brought against her by four local couples makes its way through the appeal process.

Davis plans to ask the U.S. Supreme Court to intercede in the case, but a legal observer says the clerk's chances for prevailing in the case are narrow.

Davis stopped issuing marriage licenses in June after the Supreme Court legalized same-sex marriage. An Apostolic Christian, she has said her religious views prevent her from endorsing licenses for same-sex marriages. Rather than be accused of discrimination, she said, Davis stopped issuing marriage licenses to all couples.

In its ruling on Wednesday, the three-judge panel from the Sixth Circuit Court of Appeals said there was “little or no likelihood that the Clerk in her official capacity will prevail on appeal.”

Carl Tobias, a law professor at the University of Richmond, said rulings from U.S. District Judge David Bunning -- whose temporary stay in the case was set to expire -- and the Sixth Circuit against Davis’ stay request aren’t necessarily a preview of what their rulings on the merits of the case will be.

“Judges do change their minds when they really get to the merits," Tobias said. "When Bunning hears all the evidence and arguments he may change his mind."

But he said he doubts the judges will shift course.

Davis’ defense team said they would appeal the decision to the Supreme Court. They argue that state and federal religious freedom laws protect Davis from having to violate sincerely held religious beliefs.

Tobias said he doubts that federal judges would buy that argument.

"Cases go back to desegregation just saying when the Supreme Court has spoken and something is the law of the land, it has to be followed by state officials. I think that’s where the courts are likely to come out on this question," Tobias said.

"I think that’s why most of the clerks around the country and even in the Southeast have pretty much complied with the mandate out of the Supreme Court," he said. "I just don’t think those arguments are really going to be persuasive."

Davis is represented by Liberty Counsel, a nonprofit law firm that specializes in religious freedom cases. Mat Staver, founder and chair of Liberty Counsel, said Davis' work as a government official shouldn't take precedence over her religious freedom.

“The implication is that if you work at a government agency, you don’t have any religious freedom rights. If that’s the implication, that’s staggering and that’s a startling proposition,” Staver said.

Last week, Bunning said Davis had to resume issuing marriage licenses, ruling that her religious beliefs could not be used as a defense against performing her official duties. But Bunning provided a temporary stay of that order pending appeal to the Sixth Circuit.

Either Bunning or U.S. Supreme Court Justice Elena Kagan could extend the stay.

Bill Sharp, legal director of the ACLU of Kentucky, is representing the four couples whose marriage licenses Davis denied. He said he's pleased with the ruling.

“Government officials do not give up their right to religious liberty upon taking public office, but they cannot use their religious liberties to withhold government services,” Sharp said.

The main lawsuit against Davis, which seeks damages for her failure to issue marriage licenses to the four couples, is still ongoing in Bunning’s U.S. District Court.

At least three Kentucky county clerks stopped issuing marriage licenses this summer in objection to the U.S. Supreme Court's legalization of same-sex marriage.

Ryland Barton is the Managing Editor for Collaboratives. Email Ryland at rbarton@lpm.org.