As the County Clerk for Rowan County, Kentucky, Davis’s official duties include the issuance of marriage licenses. In response to the Supreme Court’s holding in Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015), that a state is not permitted “to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex,” Davis unilaterally decided that her office would no longer issue any marriage licenses. According to Davis, the issuance of licenses to same-sex marriage couples infringes on her rights under the United States and Kentucky Constitutions as well as the Kentucky Freedom Restoration Act, KY. Rev. Stat. Ann. § 446.350. The Rowan County Clerk’s office has since refused to issue marriage licenses to the plaintiffs, and this action ensued.
The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity. The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court. There is thus little or no likelihood that the Clerk in her official capacity will prevail on appeal. Cf. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. School Dist., 624 F.3d 332, 338 (6th Cir. 2010) (where a public employee’s speech is made pursuant to his duties, “the relevant speaker [is] the government entity, not the individual”).
