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Liberty Counsel filed for a pre-hearing en banc petition to the Sixth Circuit Court of Appeals on behalf of former Rowan County, Kentucky Clerk Kim Davis, requesting that the full Court hear her appeals in the cases Ermold v. Davis and Yates v. Davis regarding her qualified immunity defense under the First Amendment and religious freedom rights. The full review by all the judges of the Court of Appeals was requested before Davis’ reply brief is due and before any hearing on the appeal has been conducted. The full review is requested because the plaintiffs argued in their answer brief filed yesterday that a prior 2017 panel already decided this issue. Davis disagrees and thus is requesting the full panel review, especially in light of comments by Supreme Court Justices that this case raises important issues that should be addressed regarding religious accommodation.

The Ermold and Yates cases each involve a same-sex couple who sued Kim Davis in 2015 following the Supreme Court’s Obergefell decision requiring all states to recognize same-sex marriage. The district court entered judgment against Davis in both cases, holding that Davis is personally liable to the plaintiffs for violating their marriage rights by not issuing marriage licenses. In the appeals, Liberty Counsel argues the district court should have dismissed the plaintiffs’ claims because Davis has qualified immunity, meaning she is immune from the plaintiffs’ claims as a public official who did not violate any clearly established right. Because Davis was entitled to an accommodation of her sincerely held religious beliefs about marriage under both the First Amendment and Kentucky law, she should not be held liable to the plaintiffs for exercising her right not to violate her conscience while marriage licenses were readily available to the plaintiffs throughout Kentucky.

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Since the 2017 appeals, the U.S. Supreme Court has decided three cases which sharpen and amplify the religious free exercise rights at the heart of Davis’ qualified immunity defense. First, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018), the High Court held that “official expressions of hostility to religion” violate free exercise rights. Then Fulton v. City of Philadelphia (2021) made it clear that government officials like Kentucky’s former Governor Steve Beshear violate free exercise rights when they deny policy exceptions for religious reasons while granting exceptions for nonreligious reasons. This is how Governor Beshear treated Davis when he denied any religious accommodation from his marriage license mandate while approving exceptions for others. Finally, in Kennedy v. Bremerton School District, the Supreme Court explained that the government must balance competing constitutional rights—like Davis’ religious free exercise rights and the Ermold and Yates plaintiffs’ marriage rights—instead of picking constitutional winners and losers.

Davis is a professing Christian who possesses a sincerely held religious belief and conviction, based on the Bible which she believes to be the Word of God, that “marriage” is exclusively a union between one man and one woman. As a result, when former Governor Steve Beshear demanded that all Kentucky county clerks endorse marriage licenses for same-sex couples, with no reasonable accommodation for clerks with sincerely held religious beliefs about marriage, Davis recused herself from issuing any marriage licenses in Rowan County, though marriage licenses remained available throughout Kentucky, including in all surrounding counties. (Kentucky marriage licenses can be obtained and used anywhere in the Commonwealth regardless of the residence of the licensee.) Refusing to obtain a marriage license from a nearby county clerk, the Ermold and Yates same-sex couples repeatedly demanded licenses from Davis and sued her when she refused to violate her conscience.

Although former Governor Beshear denied any accommodation of Davis’ sincerely held religious beliefs, causing her to be sent to jail in a related litigation for refusing to violate her conscience, Kentucky Governor Matt Bevin then came into office and vindicated Davis with an executive order acknowledging her right to an accommodation. The executive order provided an accommodation to all county clerks by removing their endorsements from marriage licenses throughout the state, and a unanimous Kentucky General Assembly made the accommodation a permanent enactment of Kentucky law.

Liberty Counsel Founder and Chairman Mat Staver said, “The First Amendment required then Gov. Steve Beshear to accommodate the sincere religious beliefs of Kim Davis. Had Gov. Beshear followed the law and granted Kim Davis a religious accommodation, there would be no case. As a result of Kim Davis, now every Kentucky clerk is entitled to a religious accommodation regarding marriage licenses. Kim Davis, the pioneer who spearheaded this effort, is also entitled to the same protection.”

Author: Liberty Counsel

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