Former Rowan County Clerk Kim Davis plans to ask the United States Supreme Court to weigh in on whether she was protected by the First Amendment when refusing same-sex marriage licenses a decade ago, her lawyer announced Monday.
This comes after the 6th U.S. Circuit Court of Appeals refused a request to re-hear her case, saying the panel of judges who ruled against Davis in March already considered the case fully.
Mat Staver, the founder and chairman of conservative legal group Liberty Counsel, said in a statement that the nation’s highest court is “the next step to give Kim Davis justice in this case since the emotional distress damage award against her in her individual capacity is barred by the First Amendment.”
Davis is fighting a federal jury’s decision that she should pay $100,000 to a couple she denied a marriage license in 2015. But her lawyers also want the case to result in same-sex marriage rights being revoked.
“This case underscores why the U.S. Supreme Court should overturn Obergefell v. Hodges, because that decision threatens the religious liberty of many Americans who believe that marriage is a sacred institution between one man and one woman,” Staver said. “The First Amendment precludes making the choice between your faith and your livelihood.”
The move is expected. Staver, who argued on Davis’ behalf in Cincinnati in January before a 3-judge panel in the 6th Circuit, said at that time he intended to use her case to try and overturn marriage equality.
Obergefell v. Hodges, the 2015 decision that guaranteed same-sex couples marriage rights, is “on the same shifting sand” that doomed Roe v. Wade, Staver said.
“I think … it’s not a matter of ‘if,’ it’s a matter of ‘when’ Obergefell will be overturned,” Staver told the Lantern in January. “I have no doubt that Obergefell will be overturned, and the issue will be returned back to the states as it was before 2015.”
The Kim Davis case
Davis, then the Rowan County clerk, made national headlines in 2015 for refusing to issue marriage licenses to several same-sex couples based on her religious beliefs.
In 2015, U.S. District Judge David Bunning ordered Davis to jail for five days for contempt for refusing to comply with a court order.
In 2024, Bunning ordered Davis to pay $260,104 in fees and expenses to attorneys who represented one of the couples she refused a marriage license. Bunning earlier ordered Davis to pay the couple, David Ermold and David Moore, $100,000 in damages for violating their constitutional rights. Liberty Counsel has unsuccessfully fought Bunning’s decisions.
Davis lost her bid for reelection as Rowan County clerk in 2018.
Her lawyers have argued she acted within her First Amendment rights when she refused to issue the licenses, though judges don’t agree.
In March, the 6th Circuit refused to strike down the jury judgement against her on those grounds, saying she “cannot raise a Free Exercise Clause defense because she is being held liable for state action, which the First Amendment does not protect.”
Liberty Counsel said the case raises the question “of whether a government official sued in an individual capacity and stripped of governmental immunity may assert a personal First Amendment defense to monetary damages.”
The group wants the Supreme Court to take up the case to “answer the question of ‘first impression,’ resolve any conflicts with Supreme Court precedent, and ensure that former government defendants standing before the Court in their personal capacity do not lose First Amendment protections.”
This article is republished under a Creative Commons license from Kentucky Lantern, which is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kentucky Lantern maintains editorial independence. Contact Editor Jamie Lucke for questions: info@kentuckylantern.com. Follow Kentucky Lantern on Facebook and Twitter.
Sarah Ladd is a Louisville-based journalist and Kentuckian. She has covered everything from crime to higher education. In 2020, she started reporting on the COVID-19 pandemic and has covered health ever since.
