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Compromise could fix Kentucky's wedding license feud, but the Supreme Court is not yet ready to deci
As a fracas over issuing same-sex marriage licenses continues in one Kentucky county, the Supreme Court isn't yet ready to step into the issue. - photo by Mark A. Kellner
When the Supreme Court of the United States ruled in June that same-sex marriage was a constitutional right, dissenting opinion author Chief Justice John Roberts wrote "hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right," adding, "there is little doubt that these and similar questions will soon be before this court."

But if Kim Davis, the elected county clerk of Rowan County, Kentucky, was hoping for a quick hearing on her objection to issuing marriage licenses to same-sex couples, those hopes were dashed this week when the Supreme Court refused to grant a stay of a federal judge's order to issue those licenses.

Davis, who said she's acting "under God's authority" in declining to issue the licenses, must now wait for the federal 6th Circuit Court of Appeals to rule on her appeal of an order to comply with the Supreme Court's June decision.

Turning down Davis' request for a stay marks the second time the justices have declined to intervene in a case involving an individual refusing to serve a gay couple for religious reasons. In April 2014 the court refused to hear an appeal from New Mexico photographer Elaine Huguenin, who was told by the New Mexico Supreme Court that photographing same-sex couples is "the price of citizenship," despite her religious objections.

While Huguenin's case ended with the Supreme Court's rejection, Davis' case could go before the high court again depending on how the 6th Circuit rules on her suit seeking a religious exemption from the same-sex marriage license mandate.

But could court challenges over individual religious conscience be avoided, at least in cases such as Davis', which involves a public official performing a civic function?

Davis' attorney, Mat Staver of Liberty Counsel in Orlando, Florida, seems to believe they can be avoided. "The Supreme Courts marriage opinion does not suggest that religious accommodations cannot be made or that people have a fundamental right to receive a marriage license from a particular clerk," Staver said in a statement headlined "Accomodations Would End Rowan County Dispute."

In Utah and North Carolina, lawmakers enacted exemptions for county clerks who have religious objections to issuing marriage licenses to gay couples by requiring them to designate someone willing to perform the service.

Kentucky lawmakers could consider a similar solution.

"Some lawmakers have discussed the possibility of changes to state law to address the issue, but the governor has said he will not call a special legislative session, so any action would have to wait until next year," the The New York Times (paywall) reported.

Allison Steinberg, a spokeswoman for the ACLU's national headquarters in New York, said via email the group is presently "litigating based on the laws that Kentucky has in place currently. We will review measures put forth by the legislature during the 2016 (Kentucky) General Assembly."

In an interview, Staver said Davis wants her name and title removed from the marriage license forms, or for Kentucky to centralize the issuance of the licenses, as they do with driver's licenses. "The license goes out under her name, authority and title," he said.

Meanwhile, Davis is under court order to appear before a judge on Thursday, the Lexington Herald-Leader reported, after Davis refused to issue marriage licenses to same-sex couples who came to her office.

Not all defenders of traditional marriage back Davis' position ordering her entire office not to issue marriage licenses to same-sex couples. The Christian Post reported Ryan T. Anderson of the Heritage Foundation told a Sept. 1 event in Washington "Davis overstepped her power by ordering her entire office to not issue marriage licenses. However, he is much in favor of granting individual court clerks the right to refrain from marrying same-sex couples."
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