Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 1

No. 15-5961
__________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
__________________________
APRIL MILLER, Ph.D; KAREN ANN ROBERTS; SHANTEL BURKE;
STEPHEN NAPIER; JODY FERNANDEZ; KEVIN HOLLOWAY; L. AARON
SKAGGS; and BARRY SPARTMAN,
Plaintiffs,
v.
KIM DAVIS, individually,
Defendant-Third-Party Plaintiff-Appellant.
v.
STEVEN L. BESHEAR, in his official capacity as Governor of Kentucky, and
WAYNE ONKST, in his official capacity as State Librarian and Commissioner,
Kentucky Department for Libraries and Archives,
Third-Party Defendants-Appellees.
__________________________
On Appeal From The United States District Court
For The Eastern District of Kentucky
In Case No. 15-cv-00044 Before The Honorable David L. Bunning
__________________________
APPELLANT KIM DAVIS’ EMERGENCY MOTION FOR IMMEDIATE
CONSIDERATION AND MOTION FOR INJUNCTION PENDING
APPEAL
__________________________
(continued on next page)

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 2

(continued from prior page)
A.C. Donahue
DONAHUE LAW GROUP, P.S.C.
P.O. Box 659
Somerset, Kentucky 42502
(606) 677-2741
ACDonahue@DonahueLawGroup.com

Mathew D. Staver, Counsel of Record
Horatio G. Mihet
Roger K. Gannam
Jonathan D. Christman
LIBERTY COUNSEL
P.O. Box 540774
Orlando, Florida 32854
(800) 671-1776
court@lc.org / hmihet@lc.org /
rgannam@lc.org / jchristman@lc.org

Counsel for Appellant Kim Davis

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 3

Pursuant to Fed. R. App. P. 8(a)(2) and 27, and 6th Cir. Rule 27(c), Appellant
Kim Davis (“Davis”) hereby moves this Court, on an emergency basis, for an
injunction pending appeal of the district court’s August 25, 2015 order effectively
denying Davis’ request for a preliminary injunction against Third-Party DefendantsAppellees Steven L. Beshear, in his official capacity as Governor of Kentucky
(“Gov. Beshear”) and Wayne Onkst, State Librarian and Commissioner, Kentucky
Department for Libraries and Archives (KDLA) (“Commr. Onkst”) (D.E. 66)1.
INTRODUCTION
In an assault upon her individual liberty and dignity, Davis currently sits
incarcerated in the Carter County Detention Center (Kentucky), in significant
part, because Gov. Beshear has refused to take elementary steps to accommodate
Davis’ undisputed, sincerely-held religious beliefs about marriage. Her incarceration
could have been avoided if the district court had acted on her request for preliminary
injunctive relief against Gov. Beshear and Commr. Onkst. In fact, but for Gov.
Beshear’s edict directing Kentucky County Clerks, including Davis, to authorize
same-sex “marriage” (“SSM”) licenses bearing their own name, Plaintiffs’
underlying lawsuit would be against him, not her. From the outset of this case, Davis
has proposed numerous simple options that resolve the parties’ conflict, and protect
Davis’ sincerely-held religious beliefs. These less restrictive solutions are readily
1

Citations to the district court record are indicated by this format: “D.E. __.”
1

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 4

available, and easily accomplished by Gov. Beshear and the KDLA, the state agency
responsible for designing the revised marriage form at issue in this litigation.
Over against the decision to redefine marriage in Obergefell v. Hodges, 135
S.Ct. 2584 (2015), the Supreme Court neither overwrote the First Amendment or
other critical religious liberty protections for persons nor compelled States to
accomplish recognition of SSM by invading and trampling upon the consciences of
individual county clerks. Thus, coercing an individual county clerk (Davis) to
authorize and personally approve SSM in violation of her religious liberty and
speech rights, as Gov. Beshear has done, is wrong. That is especially true here, where
Davis took office when Kentucky marriage law perfectly aligned with her deep
religious convictions, and there are multiple alternatives available by which
individuals can obtain SSM licenses without voiding Davis’ conscience and
stripping Davis of her liberties. As a prisoner of her conscience, Davis continues to
request a simple accommodation and exemption from Gov. Beshear, who is
overseeing Kentucky marriage policy. Granting an injunction pending appeal of the
district court’s August 25, 2015 order will ensure that Davis’ individual rights are
not continually, and forever, irreversibly harmed by Gov. Beshear’s own inactions.
STATEMENT OF FACTS
On June 26, 2015, only moments after the Supreme Court decided Obergefell,
and without permitting any legislative response or action, Gov. Beshear issued a
2

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 5

directive ordering all Kentucky county clerks to personally authorize SSM licenses
(the “SSM Mandate”). This SSM Mandate triggered Plaintiffs’ lawsuit after a
particular county clerk (Davis) in a particular county (Rowan County) refused to
authorize and approve their Kentucky marriage licenses based upon her religious
conscience objection to SSM. See D.E. 1. Plaintiffs filed a motion to enjoin Davis
from “refusing to issue marriage licenses to any future marriage license applications
submitted by the Named Plaintiffs.” D.E. 2-2.
Facing potential liability on Plaintiffs’ claims due to the SSM Mandate, Davis
filed a verified third-party Complaint against Gov. Beshear, the issuer of the SSM
Mandate, and Commr. Onkst, who oversees the KDLA, see D.E. 34, Verified ThirdParty Complaint (“VTC”) (attached hereto as Exhibit “B”), and a motion to enjoin
enforcement of Gov. Beshear’s SSM Mandate and obtain an exemption “from
having to authorize the issuance of Kentucky marriage licenses.” D.E. 39-7.
Importantly, the grounds on which Davis sought preliminary injunctive relief
against Gov. Beshear are necessarily intertwined with the grounds on which she
opposed Plaintiffs’ request for preliminary injunction against her, see D.E. 29, 39-1,
but even the district court acknowledged the “further develop[ment]” of Davis’
religious conscience exemption request against Gov. Beshear. D.E. 43 at 19, n. 9.
But rather than considering Davis’ and Plaintiffs’ requests together and allowing
Davis to develop a further evidentiary record on her own request for individual
3

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 6

exemption and accommodation from Gov. Beshear’s SSM Mandate, the district
court granted Plaintiffs their injunctive relief against Davis on August 12, 2015
(hereinafter, the “Injunction”). The Injunction enjoins Davis “from applying her ‘no
marriage licenses’ policy to future marriage license requests submitted by
Plaintiffs,” without fully considering Davis’ own injunctive relief. Id. at 28.2
On August 25, 2015, the district court entered an order, on its own motion,
staying any consideration of Davis’ motion for preliminary injunction against Gov.
Beshear “pending review” of the Injunction by this Court, thereby effectively
denying Davis’ request for preliminary injunctive relief. D.E. 58. That “practical
denial” of injunctive relief is immediately appealable under 28 U.S.C. § 1292(a).3
On August 31, 2015, Davis filed a notice of appeal of the district court’s August 25,
2015 order to this Court. D.E. 66 (attached hereto as Exhibit “A”).
On September 2, 2015, Davis filed a motion for injunction pending appeal in
the district court. D.E. 70. The district court refused to decide that motion before
sending Davis to jail for contempt. D.E. 75. In fact, the district court stated it would
not rule on the motion for injunction pending appeal before September 11, 2015,
more than one week after incarcerating Davis. See Hr’g Tr. (9/3/2015), at 29:2-30:17
2

Facing an order enjoining her to authorize marriage licenses in derogation of
her religious conscience, Davis filed a notice of appeal of the Injunction to this
Court, D.E. 44, docketed as Case No. 15-5880.
3
Gillis v. U.S. Dep’t of Health & Human Servs., 759 F.2d 565, 567 (6th Cir.
1985); Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981).
4

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 7

(excerpts attached hereto as Exhibit “C”). Due to the emergency circumstances
presented by Davis’ incarceration and the substantial loss of personal liberties she
faces every day without an injunction pending appeal, time is of the essence and a
ruling from the district court is therefore “impracticable” under Fed. R. App. P.
8(a)(2)(A)(i). Accordingly, Davis now seeks that relief in this Court.
ARGUMENT
In granting an injunction pending appeal, this Court “engages in the same
analysis that it does in reviewing the grant or denial of a motion for a preliminary
injunction.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 572
(6th Cir. 2002). The relevant factors are: “(1) whether the movant has shown a strong
likelihood of success on the merits; (2) whether the movant will suffer irreparable
harm if the injunction is not issued; (3) whether the issuance of the injunction would
cause substantial harm to others; and (4) whether the public interest would be served
by issuing the injunction.” Id. at 573.
I.

Davis Has A Strong Likelihood Of Succeeding On The Merits Of Her
Claims Against Gov. Beshear And Commr. Onkst.
Davis’ inability to personally authorize and approve SSM licenses bearing her

imprimatur against her religious conscience is protected by the United States and
Kentucky Constitutions, along with the Kentucky RFRA. See U.S. CONST., amend
I; KY. CONST., §§ 1, 5; KY. REV. STAT. § 446.350. The Kentucky RFRA, which was
enacted by an overwhelming majority in 2013 over Gov. Beshear’s veto, protects a
5

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 8

person’s4 “right to act or refuse to act in a manner motivated by a sincerely held
religious belief,” and this religious freedom right “may not be substantially burdened
unless the government proves by clear and convincing evidence that it has a
compelling governmental interest in infringing the specific act or refusal to act and
has used the least restrictive means to further that interest.” KY. REV. STAT. §446.350
(emphasis added); see also Prater v. City of Burnside, Ky., 289 F.3d 417, 427 (6th
Cir. 2002) (Free Exercise Clause “protects not only the right to hold a particular
religious belief, but also the right to engage in conduct motivated by that belief.”).5
The statute thus protects not only a person’s beliefs but also a person’s actions (or
non-actions) based thereon, and subjugates to the strictest scrutiny any governmental
action (be it legislative or regulatory scheme, or executive action) infringing
religiously-motivated actions (or non-actions).6

The Kentucky RFRA protects the religious freedom of all “persons” in
Kentucky. While “person” is not defined in the Kentucky RFRA, it is defined in
Kentucky’s general definitions statute to include “individuals,” and publicly elected
officials are not excluded. See KY. REV. STAT. § 446.010(33).
5
Because Davis’ free exercise claim is combined with a free speech claim, her
free exercise claim is also subject to strict scrutiny. See Employment Div., Dep’t of
Human Resources of Oregon v. Smith, 494 U.S. 872, 881 (1990).
6
The Kentucky RFRA is housed under Chapter 446 of Kentucky’s statutes,
which is entitled “Construction of Statutes,” and includes such other generally
applicable provisions as “Definitions for Statutes Generally,” “Computation of
Time,” “Severability,” “Titles, Headings, and Notes,” KY. REV. STAT. §§ 446.010,
446.030, 446.090, 446.140. Even more specifically, the Kentucky RFRA is included
under a section of Chapter 446 reserved for “Rules of Codification.” As such,
4

6

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 9

The Kentucky RFRA is similar to (but goes even further in protecting
religious liberties than) the federal Religious Freedom Restoration Act (“Federal
RFRA”), 42 U.S.C. § 2000bb-1(a) & (b), which was enacted to “provide very broad
protection for religious liberty,” Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct.
2751, 2760 (2014), and imposes “the most demanding test known to constitutional
law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). Thus, Gov. Beshear’s SSM
Mandate—the state action here—must survive strict scrutiny.
A.

Davis’ Religious Beliefs Are Substantially Burdened By Gov.
Beshear’s SSM Mandate.

Supreme Court and Sixth Circuit precedent, along with post-Obergefell
pending legislation in Kentucky and the undisputed evidentiary record on this
appeal, support the conclusion that Davis’ religious beliefs are substantially
burdened by Gov. Beshear’s SSM Mandate forcing her to authorize SSM licenses.
Davis indisputably holds sincere religious beliefs about marriage and her
inability to issue SSM licenses is motivated by those convictions. VTC, ¶¶ 17-18. In
her belief, marriage is the sacred union of a man and a woman, only. VTC, ¶ 17. The
prescribed marriage license form required under Gov. Beshear’s SSM Mandate
provides no opportunity for the religious objector (Davis) not to participate in
endorsement and approval of SSM. The specific form uses the word “marriage” at

Kentucky marriage law cannot be interpreted without also considering and applying
the Kentucky RFRA.
7

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 10

six different places, requires Davis’ name to be on the license at two different places
(at least) for any license issued in Rowan County, Kentucky, and also requires her
to authorize the “join[ing] together in the state of matrimony” a proposed union that
she cannot approve. VTC, ¶ 11, and Exs. A, D. But Davis cannot authorize a union
of two persons which, in her sincerely-held belief, is not marriage. VTC, ¶¶ 17-18.
Gov. Beshear has flatly rejected Davis’ request for religious exemption. In his
view, Davis must either comply with his SSM Mandate, or resign from office. VTC,
¶¶ 28, 36. On Gov. Beshear’s own initiative, the KDLA prepared a revised marriage
form in response to his SSM Mandate, which was then distributed to county clerks
for them to begin using immediately, without exception, per Gov. Beshear’s
directive. VTC, ¶¶ 25-26, and Ex. C. This form provided no opportunity for county
clerks with religious objections to SSM not to participate in endorsement and
approval of SSM. On this new form constructed by Gov. Beshear and the KDLA,
the “authorization” to marry (even on licenses she does not personally sign) still
unmistakably comes from Davis herself. VTC, ¶ 12, and Ex. C. As in the old forms,
the new KDLA-approved form requires Davis to put her imprimatur no less than two
times on each and every marriage license issued in her county. VTC, ¶¶ 11, 26, and
Ex. C.7 However, as noted above, to authorize a SSM license bearing her imprimatur

7

By legislative enactment predating Obergefell, this form included: (1) an
“authorization statement of the county clerk issuing the license”; (2) “the
signature of the county clerk or deputy clerk issuing the license”; (3) “[a] signed
8

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 11

sears her conscience because she would be endorsing the proposed union and calling
something “marriage” that is not marriage according to her beliefs. VTC, ¶¶ 17-18.
Thus, Gov. Beshear is imposing a direct, severe, and substantial pressure on
Davis by the SSM Mandate when he forces Davis “to choose between following the
precepts of her religion and forfeiting benefits [her job], on the one hand, and
abandoning one of the precepts of her religion in order to accept work [keep her job],
on the other hand.” Sherbert v. Verner, 374 U.S. 398, 404 (1963).8 This Hobson’s
choice places undue pressure on Davis to choose between her job and her religion.
In addition to his unmitigated “approve or resign” rule, Gov. Beshear has
ominously declared that “the courts” will deal with county clerks who do not comply
with his SSM Mandate. VTC, ¶ 35. Moreover, immediately after issuance of the
SSM Mandate, Atty. Gen. Conway even threatened possible legal action against
county clerks who did not comply with the SSM Mandate, even seemingly inviting
statement by the county clerk or a deputy county clerk of the county in which the
marriage license was issued”; and (4) the “the name of the county clerk under
whose authority the license was issued.” KY. REV. STAT. § 402.100(1)-(3)
(emphasis added). As county clerk, Davis is provided this form by the KDLA, and
she has no local discretion in the composition and requirements of that prescribed
form. VTC, ¶¶ 7, 10.
8
See also Holt v. Hobbs, 135 S.Ct. 853, 862 (2015) (government places a
“substantial burden” on religious exercise if policy requires person “to ‘engage in
conduct that seriously violates [her] religious beliefs” or “contravene that policy and
. . . face serious disciplinary action”); Haight v. Thompson, 763 F.3d 554, 565 (6th
Cir. 2014) (government places a “substantial burden” on religious belief when it
“‘place[s] substantial pressure on an adherent to modify his behavior and to violate
his beliefs,’ or ‘effectively bar[s]’ his sincere faith-based conduct”).
9

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 12

this very lawsuit against Davis: “Any clerk that refuses to issue marriage licenses is
opening himself or herself to potential legal liability and sanctions. Any couple or
person denied a license may seek remedy in federal court, but should consult with a
private attorney about their particular situation.”9 Loss of job. Civil liability.
Sanctions. Private lawsuits in federal court. Contempt motions. Imprisonment. Davis
is being threatened with (and experiencing) all of the above by choosing to adhere
to her sincere religious beliefs. Certainly, religious liberty protections, including the
Kentucky RFRA, are designed to protect a person from such substantial burdens
upon their religious freedom.10
It is not for the district court or, respectfully, even this Court, to question the
reasonableness or scriptural accuracy of Davis’ beliefs about marriage. Hobby
Lobby, 134 S.Ct. at 2779 (citing Thomas v. Review Bd. of Indiana Employment
Security Div., 450 U.S. 707, 716 (1981)). Judges “are not arbiters of scriptural
interpretation,” and they are not tasked with determining who “more correctly”
9

This statement attributed to Atty. Gen Conway was contemporaneously
reported by multiple news sources. See, e.g., Several county clerks defy same-sex
marriage ruling, refuse to issue marriage licenses, LEXINGTON HERALD-LEADER,
June 29, 2015; Steve Beshear and Jack Conway: On refusing marriage licenses,
WTVQ.COM, June 30, 2015.
10
A proposed Kentucky legislative act on what constitutes a substantial burden
in the marriage license context post-Obergefell agrees with Davis. This bill would
expressly protect clerks like Davis from having to issue SSM licenses, amending the
Kentucky RFRA to state expressly that “[i]ssuing or recording” a SSM license can
be considered a “substantial burden for which there is no compelling government
interest.” See An Act Relating to Marriage, Ky. House Bill 101 (2016 Reg. Sess.).
10

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 13

perceives their faith’s commands. Thomas, 450 U.S. at 716. Moreover, it is not for
any court to determine whether Davis’ religious beliefs are “mistaken” or
“insubstantial.” Hobby Lobby, 134 S.Ct. at 2779. Instead, the “‘narrow function’ . .
. in this context is to determine’ whether the line drawn reflects ‘an honest
conviction.’” Id. (quoting Thomas, 450 U.S. at 716). There is no dispute that the
requisite “honest conviction” exists here, and she is facing severe consequences of
adhering to that conviction.
Importantly, Davis is not claiming a substantial burden on her religious
freedom if someone else authorizes and approves a SSM license devoid of her
name. For example, Davis is not claiming that her religious freedom is substantially
burdened if she must complete an opt-out form to be exempted from issuing SSM
licenses. Davis is also not claiming that a SSM license authorized by the Rowan
County Judge/Executive and devoid of her name and authority substantially burdens
her religious freedom. Davis is also not claiming that her religious freedom is
substantially burdened if the license were issued by someone else in Rowan County
(e.g., a deputy clerk), so long as that license is not issued under her name or on her
authority. But as it stands now, and through no fault of her own, no marriage license
can be issued from the Rowan County clerk’s office without Davis’ authorization
and without her name and imprimatur on the license. Davis is also not claiming that
the mere administrative act of recording substantially burdens her religious freedom.
11

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 14

But county clerks are not mere scriveners for a marriage. Instead, county clerks
actually authorize the marriage license. See KY. REV. STAT. § 402.100(1)-(3).
B.

The SSM Mandate Will Not Survive Strict Scrutiny Review.

To overcome this substantial burden on Davis’ religious freedom, Gov.
Beshear must demonstrate by clear and convincing evidence that he has (1) a
compelling governmental interest in infringing Davis’ religious conscience through
the SSM Mandate and (2) used the least restrictive means to accomplish that interest.
Under this strict scrutiny analysis, to be a compelling governmental interest, the
SSM Mandate must further an interest “of the highest order,” Church of Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993), and, “[i]f a less
restrictive means is available for the Government to achieve its goals, the
Government must use it.” United States v. Playboy Entm’t Group, Inc., 529 U.S.
803, 815 (2000) (emphasis added).
There is no compelling governmental interest in forcing Davis to violate her
religious freedom. This inquiry “requires the Government to demonstrate that the
compelling interest test is satisfied through application of the challenged law ‘to the
person’—the particular claimant whose sincere exercise of religions is being
substantially burdened,” Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 430-31 (2006) (emphasis added) (quoting 42 U.S.C. §
2000bb-1(b)), and further requires courts “to ‘loo[k] beyond broadly formulated

12

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 15

interests’ and to ‘scrutiniz[e] the asserted harm of granting specific exemptions to
particular religious claimants’—in other words, to look to the marginal interest in
enforcing” the SSM Mandate in this case. See Hobby Lobby, 134 S.Ct. at 2779
(emphasis added) (quoting O Centro, 546 U.S. at 431). Here, Gov. Beshear cannot
show that granting a specific exemption to Davis will endanger the Commonwealth
of Kentucky, let alone Kentucky’s marriage licensing scheme.
Gov. Beshear’s claim that “like minded” exemptions require denial of Davis’
exemption does not withstand scrutiny under precedent from the Supreme Court and
Sixth Circuit.11 Rather, the Kentucky RFRA, like its federal counterpart, “operates
by mandating consideration, under the compelling interest test, of exceptions to
‘rule[s] of general applicability,’” and provides “‘a workable test for striking
sensible balances between religious liberty and competing prior governmental
interests.’” See O Centro, 546 U.S. at 436 (citing 42 U.S.C. §§ 2000bb–1(a),
2000bb(a)(5)). Of course, religious accommodations are not provided for each and
every whim or scruple raised by a person, and merely stating a religious objection
does not mean that any county clerk can deny a marriage license at any time for any

See Haight, 763 F.3d at 562 (rejecting prison warden’s “like-minded”
contention that if he grants one prisoner an accommodation he will then “have to
grant others, having set a precedent with the ‘first’ accommodation”); see also O
Centro, 546 U.S. at 436 (finding under RFRA that this kind of argument represents
“the classic rejoinder of bureaucrats throughout history: If I make an exception for
you, I’ll have to make one for everybody, so no exceptions”); Holt, 135 S.Ct. at 866.
11

13

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 16

reason. That is not this case. As noted above, Davis has served in the county clerk’s
office for thirty years, and, during this entire time period, this is the first instance in
which she (or anyone else for that matter) has raised a religious objection to
performing a function in the county clerk’s office. VTC, ¶ 31. Plainly, this is not a
situation where accommodating Davis’ religious objections will swallow the rule,
because licenses are readily available in more than 130 marriage licensing locations
spread across Kentucky. VTC, ¶¶ 9, 27.
Additionally, the SSM Mandate decreed by Gov. Beshear was neither
expressly nor impliedly compelled by Obergefell, and leaves no room for individual
county clerks’ religious freedoms. Contrary to Gov. Beshear’s suggestion that Davis
must apply his SSM Mandate, Davis does not shed her personal convictions and
individual rights at the entry door of public service. It is well-established law that a
person’s constitutional and statutory rights and liberties are not immediately
eviscerated the moment they take their oath of office.12
But even if the requisite showing of a compelling government interest
showing can be made, the infringement upon Davis must still satisfy the

“Almost fifty years ago, this Court declared that citizens do not surrender their
First Amendment rights by accepting public employment.” Lane v. Franks, 134 S.
Ct. 2369, 2374 (2014). There are “some rights and freedoms so fundamental to
liberty” that a citizen is “‘not deprived of [these] fundamental rights by virtue of
working for the government.’” Borough of Duryea, Pa. v. Guarnieri, 131 S.Ct. 2488,
2493-94 (2011) (citation omitted).
12

14

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 17

“exceptionally demanding” least-restrictive-means standard. See Hobby Lobby, 134
S.Ct. at 2780. Gov. Beshear cannot demonstrate that he “lacks other means” of
issuing marriage licenses to same-sex couples “without imposing a substantial
burden” on Davis’ “exercise of religion.” Id. Not only that, the least-restrictivemeans test may “require the Government to expend additional funds” to
accommodate “religious beliefs.” Id. at 2781. Thus, even if proposed less restrictive
alternatives require additional costs in applying Kentucky marriage law, such costs
are specifically envisioned by the Kentucky RFRA to ensure that a person’s religious
freedom is protected.
In this matter, even if the “desired goal” is providing Plaintiffs with Kentucky
marriage licenses in Rowan County13, see id., numerous less restrictive means
are available to accomplish it without substantially burdening Davis’ religious
freedom and conscience, such as:
•

Providing an opt-out or exemption to the Kentucky marriage licensing
scheme (as exists for the Kentucky fish and wildlife licensing scheme),
KY. REV. STAT. § 150.195, and as other states, such as North Carolina,
have enacted, see, e.g., N.C. GEN. STAT. § 51-5.5 (permitting recusal of
officials from “issuing” lawful marriage licenses “based upon any
sincerely held religious objection”);

•

Deputizing a neighboring county clerk (or some other person) to issue
Kentucky marriage licenses in Rowan County;

•

Modifying the prescribed Kentucky marriage license form to remove
the multiple references to Davis’ name and office, and thus to remove

13

Nothing in Obergefell suggests that individuals have a fundamental right to
receive a marriage license from a particular clerk, in a particular county.
15

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 18

the personal nature of the authorization that Davis must provide on the
current form14;
•

Deeming Davis “absent” for purposes of issuing SSM licenses, based
upon her moral and religious inability to issue them, and allowing those
licenses to be issued by the chief executive of Rowan County, as
specifically authorized by Kentucky law, KY. REV. STAT. § 402.240;

•

Distributing Kentucky marriage licenses at the state-level through an
online or other state-wide licensing scheme, such as through the
Department of Vital Statistics; or

•

Legislatively addressing Kentucky’s entire marriage licensing scheme
post-Obergefell, whether immediately by calling a special legislative
session or in three months in the next regular legislative session.
Leading Kentucky legislators from both parties uniformly agree that
Davis’ religious beliefs should be protected, and both gubernatorial
candidates in Kentucky have indicated an intent to address this issue in
a way that supports county clerks’ individual rights.

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. But Gov. Beshear appears not to have evaluated, let alone
even considered, any of the foregoing less restrictive alternatives before issuing his
SSM Mandate. However, government’s failure to actually “consider[] and reject[]
alternatives more tailored” to its alleged interests “cannot withstand” the least
restrictive means test. Haight, 763 F.3d at 564. Here, the ink was barely dry from
the Obergefell decision when Gov. Beshear issued his SSM Mandate to all Kentucky
County Clerks on June 26, 2015—the same day the Obergefell decision was

14

The Kentucky County Clerks Association have made a similar proposal. In
fact, Atty. Gen. Conway has publicly stated that he is “fine” with that proposal.
16

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 19

announced. VTC, ¶¶ 24-25, and Ex. C. Yet the entire Kentucky marriage licensing
scheme is founded upon the millennia-old natural definition of marriage. Gov.
Beshear could have (and still can) take steps that both recognize SSM and protect
county clerks’ religious conscience rights in response to the redefinition of marriage
in Obergefell. In fact, Gov. Beshear recently stated in a press briefing that “I’m sure
if they [the Kentucky legislature] want to make a change that they’ll be able to come
up with something . . . There’s a number of different ways, I’m sure, if they want to
change the way marriage licenses are issued, then they can do so.”15 This recent
statement not only debunks the myth that Kentucky has a compelling government
interest in forcing Davis to violate her conscience, but also, it serves as an admission
that there are a number of available options for addressing marriage licenses in a
way that alleviates the religious liberty concerns of Davis.
C.

The SSM Mandate Violates Davis’ Free Speech Rights.

The mandate commanding Davis to affix her name to SSM licenses also
violates her fundamental free speech rights protected by the United States and
Kentucky Constitutions. The Free Speech Clause protects “both what to say and
what not to say,” Riley v. Nat’l Federation of Blind of N.C., Inc., 487 U.S. 781, 797
(1988) (emphasis added), and states may not “force[] an individual, as part of [their]

15

Gov. Beshear can issue an executive order on marriage licensing which can
be ratified by the Kentucky legislature. See Ky. Rev. Stat. § 12.028.
17

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 20

daily life” to “be an instrument for fostering public adherence to an ideological point
of view [he/she] finds unacceptable.” Wooley v. Maynard, 430 U.S. 705, 715 (1976).
The Kentucky marriage form uses the word “marriage” at six different places
on the form (not including the reference to “join[ing] together in the state of
matrimony”), twice designates Davis as the person authorizing the marriage license,
and requires the stamping of her name (“KIM DAVIS”) and endorsement on the
proposed union. See KY. REV. STAT. § 402.100(3); see also VTC, Exs. A, D. Unlike
other governmental licensing or registration schemes that Kentucky provides (e.g.,
driver’s licenses, fishing and hunting licenses, motor vehicle registration, voter
registration), the issuance of a marriage license requires an individual person (Davis)
to authorize a particular relationship between persons against her religious
convictions. As it currently stands, Davis’ name and approval cannot be divorced
from a SSM license. Thus, pursuant to Gov. Beshear’s SSM Mandate, Davis is being
told to validate and affirm on the prescribed KDLA form a view that violates her
religious beliefs. See Wooley, 430 U.S. at 707. For Gov. Beshear to state that
Kentucky is issuing and recognizing SSM licenses is one thing. But commanding
Davis to be an “instrument” for a message, view, and proposed union that she finds
“morally objectionable” is altogether different, and violates not only her conscience,
but also her free speech rights. See id.

18

 Case: 15-5961

II.

Document: 26-1

Filed: 09/07/2015

Page: 21

The Remaining Factors Favor Granting An Injunction Pending Appeal.
Davis faces significant, irrevocable, and irreversible harm if she is forced to

authorize and approve even one SSM license with her name on it, against her
religious conscience, for “it is well-settled that ‘loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes irreparable injury.’”
Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (citing Elrod
v. Burns, 427 U.S. 347, 373 (1976)). If such rights “are not jealously safeguarded,
persons will be deterred, even if imperceptibly, from exercising those rights in the
future.” Newsom v. Norris, 888 F.2d 371, 378 (6th Cir. 1989).
There is no adequate compensatory or other corrective relief that will be
available at a later date (including a permanent injunction in her favor) if Davis is
forced to violate her religious conscience now. It is comparable to forcing the
religious objecting nurse to perform an abortion, the religious objecting company or
non-profit to pay for abortions or abortion-related insurance coverage, the religious
objecting non-combatant to fire on an enemy soldier, or the religious objecting state
official to participate in or attend the execution of a convicted prisoner. Ordering
Davis to authorize and approve a SSM license is the act that violates her conscience
and substantially burdens her religious freedom – an act which cannot be undone.
Importantly, Davis is not claiming a substantial burden on her religious freedom if
someone else authorizes and approves a SSM license devoid of her name.

19

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 22

Finally, the public has no interest in coercing Davis to violate her conscience
and religious freedom. See, e.g., Dayton Area Visually Impaired Persons, Inc. v.
Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (finding that the public has a “significant
interest” in the “protection of First Amendment liberties”); O Centro Espirita
Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 1010 (10th Cir. 2004)
(“[P]ursuant to RFRA, there is a strong public interest in the free exercise of religion
even where that interest may conflict with [another legislative scheme].”).
RELIEF REQUESTED
Appellant Kim Davis respectfully requests that this Court: (1) grant
immediate consideration and (2) enter an injunction enjoining enforcement of Gov.
Beshear’s SSM Mandate against her and preliminarily exempting her from
authorizing marriage licenses pending final resolution of the appeal in this Court.
DATED: September 7, 2015

Respectfully submitted:

/s/ Jonathan D. Christman
A.C. Donahue
Mathew D. Staver, Counsel of Record
Donahue Law Group, P.S.C.
Horatio G. Mihet
P.O. Box 659
Roger K. Gannam
Somerset, Kentucky 42502
Jonathan D. Christman
(606) 677-2741
Liberty Counsel, P.O. Box 540774
ACDonahue@DonahueLawGroup.com Orlando, Florida 32854
(800) 671-1776
court@lc.org / hmihet@lc.org /
rgannam@lc.org / jchristman@lc.org
Counsel for Appellant Kim Davis

20

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 23

CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of September, 2015, I caused the foregoing
document to be filed electronically with the Court, where it is available for viewing
and downloading from the Court’s ECF system, and that such electronic filing
automatically generates a Notice of Electronic Filing constituting service of the filed
document upon the following:
William Ellis Sharp
ACLU of Kentucky
315 Guthrie Street, Suite 300
Louisville, KY 40202
sharp@aclu-ky.org
Daniel J. Canon
Laura E. Landenwich
Leonard Joe Dunman
Clay Daniel Walton Adams, PLC
462 S. Fourth Street, Suite 101
Louisville, KY 40202
dan@justiceky.com
laura@justiceky.com
joe@justiceky.com

Daniel Mach
Heather L. Weaver
ACLU Foundation
915 15th Street, NW, Suite 6th Floor
Washington, DC 20005
dmach@aclu.org
hweaver@aclu.org
James D. Esseks
Ria Tabacco Mar
ACLU Foundation
125 Broad Street, 18th Floor
New York, NY 10004
jesseks@aclu.org
rmar@aclu.org

Counsel for Plaintiffs-Appellees
William M. Lear, Jr.
Palmer G. Vance II
Stoll Keenon Ogden PLLC
300 West Vine Street, Suite 2100
Lexington, KY 40507-1380
william.lear@skofirm.com
gene.vance@skofirm.com
Counsel for Third Party Defendants-Appellees

 Case: 15-5961

Document: 26-1

Filed: 09/07/2015

Page: 24

/s/ Jonathan D. Christman
Jonathan D. Christman
Liberty Counsel, P.O. Box 540774
Orlando, Florida 32854
(800) 671-1776; jchristman@lc.org