Kim Davis, the former county clerk from Kentucky who refused to grant marriage licenses to same-sex couples after marriage equality was legalized in the United States, is not insulated by her former position from being sued by the couples she rejected, a federal appeals court has ruled.
In an opinion issued on Sept. 29, the 6th U.S. Circuit Court of Appeals found that Davis does not enjoy “qualified immunity,” the legal principle that prohibits government officials from being sued while acting in their official capacity, unless a plaintiff shows the official violated “clearly established statutory or constitutional rights.”
The court found that Davis violated the “clearly established” rights of two same-sex couples — David Ermold and David Moore, and James Yates and Will Smith — to marry when she refused to issue marriage licenses to any qualified individuals in the county so she would not be compelled to issue same-sex marriage licenses and could not be accused of discriminating specifically against same-sex couples.
Davis, an Apostolic Christian, based her opposition to same-sex marriage largely on her religious beliefs that same-sex unions are immoral, reports Law & Crime, an online legal news website.
“Qualified immunity asks only two questions: did Davis violate plaintiffs’ constitutional rights, and if so, were those rights clearly established?” Judge Richard Allen Griffin wrote on behalf of the court. “It does not ask whether Davis had a justification for taking action (or, as here, inaction) that violated plaintiffs’ constitutional rights.
“But that is exactly what Davis asks us to adjudicate: whether she has an affirmative ‘free exercise defense under the First Amendment’ for her decision not to issue marriage licenses. Such a defense is not intertwined with qualified immunity; rather, it ‘can be effectively reviewed after a final judgment.'”
The court’s ruling marks the second time Davis’s claim of qualified immunity for repeatedly denying marriage licenses has been rejected by the court. Three years ago, the court found that the plaintiffs had successfully argued that Davis was not entitled to qualified immunity.
Griffin noted in this more recent opinion that the “basic fact” of the case “have not changed” since the last time the court heard the case — and that Davis understood, based on a letter from then-Gov. Steve Beshear, that all county clerks were expected to issue licenses to qualified same-sex couples.
“In the summer of 2015, Kim Davis was the County Clerk for Rowan County, Kentucky,” the opinion recounts. “One of her responsibilities was to issue marriage licenses. But same-sex marriage offended her religious beliefs, so when the Supreme Court recognized a constitutional right to same-sex marriage in Obergefell v. Hodges, Davis took matters into her own hands.”
According to the facts of the case, Yates and Smith had tried to obtain a marriage license five times, only to be rejected by Davis or other members of the clerk’s office working under her direction. Ermold and Moore tried three times, and were equally unsuccessful. After they were rejected the third time, Davis reportedly told Ermold and Moore she could not issue them a license “under God’s authority.”
Both couples were eventually able to obtain licenses after a judge’s order required the office to issue the licenses while Davis was in jail for contempt of court.
Additional facts of the case demonstrated that Davis sought an accommodation from the state legislature that would allow her to refuse to issue licenses. But the legislature failed to grant that exemption, instead choosing to — well after Davis’s release from prison — remove the names and titles of county clerks from all marriage licenses granted by the commonwealth of Kentucky.
In 2018, Davis, who left the Democratic Party and became a Republican due to her opposition to same-sex marriage, later lost her bid for re-election to a Democrat in the general election.
Last week’s ruling now allows the plaintiffs’ lawsuit to move forward, and sets up a jury trial to determine how much in damages the plaintiffs deserve. Because the courts decided in their favor, the same-sex couples have, for several years, been expecting someone — either Davis, Rowan County, or the state of Kentucky — to pay $222,000 in legal fees they incurred in bringing the lawsuit.
But Liberty Counsel, the conservative legal firm representing Davis, has aruged that Davis is not and should not be required to pay any bit of the plaintiffs’ legal fees, leaving that burden for either the state or the county to shoulder.
Liberty Counsel also said in a press release that it will be requesting that the full 6th Circuit review last Thursday’s decision, on the grounds that Davis should have been entitled to an accommodation due to her “sincerely held religious beliefs — even if she does not deserve “qualified immunity.”
If the full 6th Circuit “agrees that the matter of religious accommodation is not ripe for review, Liberty Counsel will proceed to trial raising not only qualified immunity, that the right was not clearly established, but also raise religious freedom, among other defenses,” the organization wrote in its release, noting that some Supreme Court justices have previously indicated they may be inclined to take up the case to deal with the religious freedom issue.
Therefore, it seems inevitable that the nation’s highest court may once again delve into the issue of same-sex marriage if — or when — Liberty Counsel appeals an unfavorable decision from the 6th Circuit.
“Kim Davis has a right to live out her religious beliefs and was entitled to an accommodation of her beliefs under the First Amendment and under the Kentucky Constitution and the Kentucky Religious Freedom Restoration Act,” Mat Staver, the founder and chairman of Liberty Counsel, said in a statement. “Kim Davis is not liable for damages because she was entitled to a religious accommodation based on her sincerely held religious beliefs about marriage. We have confidence that we will ultimately succeed on the religious freedom defense. This case is far from over.”
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