A federal judge has ruled that a former Kentucky clerk violated the constitutional rights of two same-sex couples after she wouldn’t issue them marriage licenses – a refusal that sparked international attention and briefly landed her in jail in 2015.
The US district judge, David Bunning, issued the ruling on Friday in two longstanding lawsuits involving Kim Davis, the former clerk of Rowan county, and two same-sex couples. A jury trial will still need to decide on any damages.
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’ 14th-amendment right to marry,” the judge wrote, referencing the landmark same-sex marriage Obergefell v Hodges decision from 2015. “It is also readily apparent that Davis made a conscious decision to violate plaintiffs’ right.”
Soon after the supreme court decision in which same-sex couples won the right to marry, Davis, a Christian who has a religious objection to same-sex marriage, stopped issuing all marriage licenses.
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 staff issued licenses on her behalf but removed her name from the form. The Kentucky legislature later enacted a law removing the names of all clerks from state marriage licenses.
Davis, a Republican, lost her bid for reelection in 2018. The Democrat Elwood Caudill Jr is now the county clerk.
Davis argued that a legal doctrine called qualified immunity protected her from being sued for damages by two couples, David Ermold and David Moore and James Yates and Will Smith. The US 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, told WKYT-TV: “They could not 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 the conservative justice Clarence Thomas, when he wrote for himself and another conservative, Samuel Alito.
Thomas wrote that while he agreed with the decision not to hear the Davis case regarding sovereign immunity claims in 2020, it was a “stark reminder of the consequences” of the 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 anti-discrimination laws”.
The court is now dominated by conservatives, 6-3.
Mat Staver, Liberty Counsel founder and chairman, said: “Kim Davis is entitled to protection to an accommodation based on her sincere religious belief. This case raises serious first amendment free exercise of religion claims and has a high potential of reaching the supreme court.”