Kim Davis Presents Case of “First Impression” for Court Review

The jury in the case had awarded $50,000 in damages to both David Ermold and David Moore for “emotional distress” based on “hurt feelings” after Davis did not issue them a marriage license but referred them to someone who would. In an identical case, Yates v. Davis, another same-sex couple presented the same arguments but that jury awarded them zero damages because the evidence did not support the awarding of any damages

The judges indicated this is potentially a case of “first impression,” where a question regarding an interpretation of the law that has never arisen before is first presented to the court.

On appeal, Davis argued that she was entitled to First Amendment protections in her position as county clerk, and that the jury was prohibited from issuing any damage award against her. According to legal precedent, the First Amendment prohibits imposing liability on an individual for the exercise of their sincerely held religious beliefs. While most of the cases holding establishing this position were based on the Free Speech Clause, there is no reason to make a distinction between the Free Speech and Free Exercise Clauses for this purpose.

However, the court wrote, “Writing on this blank slate, we are wise to tread lightly. To that end, the fact-specific nature of our holding again bears emphasis: a government employee, acting in the scope of that employment, does not have a unilateral free exercise right to use an arm of the state to infringe on a clearly established equal protection right of the public.

Change the factual setting, and a free exercise defense to a civil rights lawsuit may have more traction. It is always the case that ‘[a] later court assessing a past decision must . . . appreciate the possibility that different facts and different legal arguments may dictate a different outcome.’”

“In their ‘private lives,’ … government officials are of course free to express their views and live according to their faith,” the Court continued. “But when an official wields state power against private citizens, her conscience must yield to the Constitution.”

As Judge Chad Readler noted in his concurring opinion, “right or wrong,” Obergefell is “the law of the land.” However, Judge Readler acknowledged the legal precedents on the matter were “not entirely settled” and that public employees like Davis still retain some First Amendment protections.

The Court found that the 2015 Obergefell 5-4 opinion from the U.S. Supreme Court decided on Friday, June 26, 2015, “clearly established” that Davis as the Rowan County Clerk in Kentucky must issue licenses to same sex couples when she commenced work on Monday, June 29. The problem with this ruling, however, is that Davis’ function is totally defined by state law. To issue a license to someone not authorized to receive one under state law could subject Davis to criminal prosecution. 

The President of the Kentucky Senate wrote a brief stating that Obergefell “shredded” state law and the legislature had to act before Kentucky Clerks would be authorized to issue such licenses.

Since the Sixth Circuit majority noted that the Free Exercise Clause provides Davis with an affirmative defense to a damages award and presents a novel question of constitutional law, Liberty Counsel intends to seek further review of that issue.

Liberty Counsel intends to present at least three significant questions: (1) the Free Exercise defense for individual capacity claims against government officials; (2) whether Obergefell was wrongly decided, and (3) even if the Court does not want the Obergefell question, whether it created a clearly established right to obtain a marriage certificate from a specific government official.

Liberty Counsel Founder and Chairman Mat Staver said, “The full Sixth Circuit Court of Appeals will have a chance 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. 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. The First Amendment precludes making the choice between your faith and your livelihood.”