Last week, a federal appeals court upheld a lower court decision finding that the commonwealth of Kentucky must pay $224,000 in legal fees to four couples who sued after they were denied marriage licenses by former Rowan County Clerk Kim Davis.
In addition, the court has ruled that two gay couples who were refused licenses by Davis can sue her personally — not just in her professional capacity — for her actions.
Following the legalization of marriage equality by the U.S. Supreme Court in 2015, Davis, a born-again Apostolic Christian, decided she could not countenance issuing marriage licenses to same-sex couples. Declaring she was acting “under God’s authority,” she refused to issue any marriage licenses to any couples, regardless of sexual orientation, lest she be accused of discriminating against same-sex couples.
Four couples — both same-sex and opposite-sex — sued Davis, in her role as county clerk, and the commonwealth of Kentucky after Davis refused to issue them marriage licenses, and prohibited her subordinates from doing so as well, objecting to the fact that her name and title appeared on the marriage license. She did not want to be seen as “endorsing” same-sex marriage, even indirectly.
Davis was ordered to issue licenses but refused to do so, landing herself in jail for five nights for contempt of court. As a result, her story became national news and Davis achieved near-rock star status among social conservatives, who saw her as a hero defending traditional values while at the same time frustrating secular liberals.
Several unsuccessful Republican presidential candidates like former Arkansas Gov. Mike Huckabee and U.S. Sen. Ted Cruz of Texas, as well as then-gubernatorial hopeful Matt Bevin, publicly supported Davis and attempted to tie themselves to her in order to portray themselves as defenders of “religious liberty.” Bevin even made removing county clerks’ names from marriage licenses an issue in his ultimately successful bid for the governor’s mansion.
While Kentucky lawmakers eventually resolved the standoff by removing individual county clerks’ names from all marriage licenses in 2016, U.S. District Court Judge David Bunning had previously ordered the Rowan County Clerk’s office to begin issuing marriage licenses to qualified couples and ordered the commonwealth to pay the attorney’s fees and other legal costs incurred by the four couples, reports the Louisville Courier-Journal.
Both Rowan County and the commonwealth appealed Bunning’s ruling, arguing that they were not responsible for paying the legal fees. Lawyers for the commonwealth, including outside counsel obtained by Bevin, argued that Davis should be held personally responsible for paying the bill.
On Friday, the 6th U.S. Circuit Court of Appeals upheld Bunning’s ruling, finding that the commonwealth is the one who should bear the costs because states are responsible for regulating marriage, while Davis, a former Democrat-turned-Republican, was protected because she was acting in her official capacity when she denied the licenses.
Davis, who ran for re-election to her old post last year, ultimately lost by 8 points to Democrat Elwood Caudill, Jr. — who the court found is also not liable for legal costs.
The 6th Circuit also ruled, in a separate opinion involving two other same-sex couples — including former Rowan County Clerk candidate David Ermold and his partner, David Moore — that while Davis has sovereign immunity as a public official, she does not enjoy qualified immunity as an individual.
The district court in that case has yet to issue a ruling or award any damages in the case. However, the appeals court’s initial finding means that Ermold and Moore, as well as fellow plaintiffs Will Smith and James Yates, could attempt to sue her as an individual in order to force her to pay their legal bills.
Davis’ attorneys, from the conservative legal firm Liberty Counsel, said in a statement Friday that “Davis will continue to argue that she is not liable for damages because she was entitled to a religious accommodation … and that her actions did not violate clearly established rights.”
Mat Staver, the founder and chairman of Liberty Counsel, said he believes Davis will ultimately not be held liable for individual damages — and, furthermore, that he believes Davis has a compelling argument that there should be accommodations for state or local employees that allow them to avoid violating their personal religious beliefs.
“At the end of the day, she will ultimately prevail,” Staver told NBC News in an interview. “She had no hostility to anyone, given that she stopped issuing all marriage licenses. … The broader issue is what accommodation a court should provide someone based on their religious beliefs. It’s a matter of time before such a case goes squarely before the Supreme Court.”
The American Civil Liberties Union, which represented the four couples in the first complaint, hailed the 6th Circuit’s ruling finding Kentucky must pay their clients’ legal fees.
“Let this be a reminder to every politician: If you use your position to discriminate against LGBTQ people, it will cost you,” the organization tweeted.
Let this be a reminder to every politician: If you use your position to discriminate against LGBTQ people, it will cost you.
— ACLU (@ACLU) August 23, 2019
“By affirming the sizable fee award, the Court also sent a strong message to other government officials in Kentucky that it is not only unconstitutional to use public office to impose one’s personal religious views on others, but that it also can be a very expensive mistake,” William Sharp, an attorney for the ACLU of Kentucky, said in a statement.
“Kim Davis was an outlier who has been replaced by Kentucky voters,” Ria Tabacco Mar, a senior staff attorney for the national ACLU, said in her own statement. “Today’s decision brings another form of vindication for the Rowan County couples who continued the good fight long after marriage equality became the law of the land.”