Liberty Counsel filed a response to the plaintiffs’ motion for summary judgment in the district court on behalf of former Rowan County Kentucky Clerk Kim Davis in the case of Ermold v. Davis, and will file in Yates v. Davis later today, arguing that the plaintiffs are not entitled to recover damages and/or attorney’s fees from Davis. Among other arguments, the motion and legal memo raises the First Amendment Free Exercise Clause as a defense.
Then-Governor Steve Beshear clearly violated Davis’ religious freedom with his unconstitutional marriage license mandate by denying her request for an accommodation while granting other individualized exceptions.
Prior to the June 2015 U.S. Supreme Court marriage opinion, Kentucky law provided individual exemptions for clerks who objected to issuing hunting and fishing licenses to opt out in order to accommodate their conscience or religious concerns.
Prior to the religious accommodation request, Governor Steve Beshear accommodated Attorney General Conway’s religious and conscientious objection to defending Kentucky’s marriage law that defined marriage as the union of one man and one woman.
However, when Kim Davis requested religious accommodation from being forced to issue marriage licenses that conflict with her religious belief, Beshear not only denied her request, but ordered with legal authority, all clerks to issue licenses to same-sex couples.
When Gov. Matt Bevin took office in December 2015, he immediately issued an executive order accommodating all Kentucky clerks who refused to issue marriage licenses that conflict with their religious beliefs. Then in 2016, the Kentucky General Assembly unanimously passed legislation that provided accommodation for clerks who object to issuing marriage licenses for same-sex ceremonies.
In fact, Kentucky has a history of accommodating clerks who chose to opt out of issuing hunting and fishing licenses; (2) Gov. Beshear accommodated the religious and conscious objection of his attorney general who requested to opt out of defending the marriage law; (3) Gov. Matt Bevin accommodated Kim Davis and other clerks the first week he took office; and (4) the Kentucky General Assembly unanimously passed a law accommodating all clerks with religious objections by permitting them to opt out of issuing such licenses. Therefore, the refusal of Gov. Beshear to accommodate Kim Davis violated her First Amendment free exercise rights.
When Davis petitioned the Supreme Court for review in 2020, the High Court denied review in which the only issue raised was sovereign immunity. However, Justices Thomas and Alito appeared to invite future challenges to the 2015 Obergefell marriage case. Justice Thomas, joined by Justice Alito, wrote that “[t]his petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them.”
This case now clearly presents the free exercise defense and thus could return to the Supreme Court.
Liberty Counsel Founder and Chairman Mat Staver said, “Governor Steve Beshear clearly violated Kim Davis’ religious freedom with his unconstitutional marriage license mandate by denying her request for accommodation while granting accommodation to his attorney general who refused to defend the marriage law. This case raises serious First Amendment free exercise of religion claims and has a high potential of reaching the Supreme Court. Kim Davis will prevail with the truth.”
