Judge: Same-sex marriage license denials violated rights

A federal judge has ruled that a former Kentucky clerk violated the constitutional rights of two same-sex couples who were among those to whom she wouldn’t issue marriage licenses — a refusal that sparked international attention and briefly landed her in jail in 2015.

U.S. District Judge David Bunning in Ashland issued the ruling Friday in two longstanding lawsuits involving Kim Davis, the former clerk of Rowan County, and two same-sex couples who sued her. With the decision, a jury trial will still need to take place to decide on any damages the couples could be owed.

Bunning reasoned that Davis “cannot use her own constitutional rights as a shield to violate the constitutional rights of others while performing her duties as an elected official.”

“It is readily apparent that Obergefell recognizes Plaintiffs’ Fourteenth Amendment right to marry,” the judge wrote, referencing the landmark same-sex marriage Obergefell decision. “It is also readily apparent that Davis made a conscious decision to violate Plaintiffs’ right.”

Soon after the 2015 Supreme Court decision in which same-sex couples won the right to marry nationwide, Davis, a Christian who has a religious objection to same-sex marriage, stopped issuing all marriage licenses.

That led to lawsuits against her, and a judge ordered Davis to issue the licenses. She was sued by gay and straight couples, and spent five days in jail over her refusal.

She was released only after her staff issued the licenses on her behalf but removed her name from the form. The state legislature later enacted a law removing the names of all county clerks from state marriage licenses.

Davis, a Republican, ultimately lost her bid for reelection in 2018. Democrat Elwood Caudill Jr. is now the county’s clerk.

Davis had argued that a legal doctrine called qualified immunity protected her from being sued for damages by couples David Ermold and David Moore as well as James Yates and Will Smith. The U.S. Supreme Court in October 2020 left in place a decision that allowed the lawsuit to move forward, declining to take the case.

Michael Gartland, an attorney for the plaintiffs in the case, told WKYT-TV “they couldn’t be more happy that they’re finally going to get their day in court and they’re confident justice will be served.”

Liberty Counsel, the law firm that represents Davis, said the case could return to the Supreme Court.

The group pointed to comments on the 2020 ruling by Supreme Court Justice Clarence Thomas, when he wrote for himself and Justice Samuel Alito.

Thomas wrote that while he agreed with the decision not to hear the Davis case regarding the immunity claims in 2020, it was a “stark reminder of the consequences” of the court’s 2015 decision in the same-sex marriage case.

Because of that case, he wrote, “those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul” of the case “and its effect on other antidiscrimination laws.”

“Kim Davis is entitled to protection to an accommodation based on her sincere religious belief,” said Mat Staver, Liberty Counsel founder and chairman. “This case raises serious First Amendment free exercise of religion claims and has a high potential of reaching the Supreme Court.”