Kim Davis Requests Full Court Review for “First Impression” Case

A three-judge panel from the Sixth Circuit affirmed the jury verdict against her, but indicated this is potentially a case of “first impression,” meaning that Davis’s cases presents a novel or unique question of law for which the courts have not settled on an answer. The case has raised 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.

By rehearing the case, the en banc Sixth Circuit can answer the question of “first impression,” resolve the conflicts with Supreme Court precedent, and ensure that former government defendants standing before the Court in their personal capacity do not lose First Amendment’s protections, wrote Liberty Counsel.

While the Sixth Circuit panel provided Davis with excellent grounds for a full court review, the case has the potential to reach the Supreme Court of the United States.

In the petition, Liberty Counsel states that Davis found herself having to choose between her religious beliefs and her job after the High Court’s Obergefell decision read a right to “same-sex marriage” into the Fourteenth Amendment, even though it is not found explicitly in the text. Nevertheless, the Sixth Circuit panel held that the First Amendment does not shield Davis in her individual capacity because her actions stemmed from being a state actor at the time. Liberty Counsel contends that since Davis now stands before the Court solely as an individual and stripped of any government immunity protection, she must have personal defenses available to her since “First Amendment protection is afforded to all citizens.”

The question raised in this case is a matter of “exceptional constitutional importance,” wrote Liberty Counsel. The panel’s ruling, as it stands now, would mean government officials shed their constitutional rights upon entering government service. However, Liberty Counsel notes that this ruling conflicts with Supreme Court precedent in two cases, Hafer v. Melo and Kentucky v. Graham. Essentially, the two cases ruled government officials can raise “personal immunity defenses” while being sued in an individual capacity.

In December 2023, the jury in Ermold v. Davis 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

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.”