Liberty Counsel has appealed to the Sixth Circuit Court of Appeals on behalf of former Rowan County, Kentucky Clerk Kim Davis, who was denied the motion for summary judgment by U.S. District Court Judge David Bunning in the cases of Ermold v. Davis and Yates v. Davis.
Liberty Counsel will argue that Davis is not liable for damages because she was entitled to a religious accommodation (which Governor Matt Bevin and the legislature unanimously granted) from issuing marriage licenses that conflict with her religious beliefs. In granting summary judgment for the plaintiffs, Judge Bunning ruled that Davis violated “clearly established” law when she ceased issuing all marriage licenses. Davis argues that a finding of liability would violate the First Amendment Free Exercise of Religion.
This case now clearly presents the free exercise defense and thus could return to the Supreme Court.
When Governor 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 April 2016, the Kentucky General Assembly unanimously passed legislation that provided accommodation for clerks who object to issuing marriage licenses that conflict with their religious beliefs.
In fact, (1) Kentucky has a history of accommodating clerks who because of conscience opt out of issuing hunting and fishing licenses; (2) Gov. Beshear accommodated the conscientious 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 scope of 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.”
Liberty Counsel Founder and Chairman Mat Staver said, “Kim Davis is entitled to an accommodation based on her sincerely held religious beliefs about marriage. This case now goes to the Circuit Court of Appeals and has a high potential of reaching the Supreme Court.”
