On Wednesday, the 6th Circuit Court of Appeals refused to stay a lower court’s decision ordering Kim Davis, a Kentucky county clerk, to resume granting marriage licenses. Davis—a taxpayer-funded public servant—refused to grant marriage licenses to same-sex couples after the Supreme Court ruled that the Constitution protects gay people’s right to wed in Obergefell v. Hodges. She then declared that she would refuse to grant marriage licenses to any couple, to avoid giving them to same-sex couples. Several same-sex couples sued, but Davis insisted that the state was violating her rights to free speech and free exercise of religion by forcing her to grant licenses to gay people. A federal district judge ruled against her but put his decision on hold until the 6th Circuit weighed in.
Now the 6th Circuit has come out emphatically against Davis. To justify keeping the district court’s ruling on hold, Davis would have to prove that she has “a strong likelihood of success on the merits.” But, the court held, “in light of the binding holding of Obergefell, it cannot be defensibly argued” that Davis “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 Davis “in her official capacity will prevail on appeal.”
To justify its holding, the court cited a string of cases that held that “where a public employee’s speech is made pursuant to his duties, ‘the relevant speaker [is] the government entity, not the individual.’ ” That’s exactly right, of course: By taking a job with the government, Davis became a public employee required to serve the whole public. She does not maintain an individual right to refuse to serve some people simply because of her own religious beliefs. Davis isn’t arguing for a right to free speech. She’s demanding that the state finance her own discrimination. And under the U.S. Constitution, that is a losing argument.