Liberty Counsel will file a motion this month in Ermold v. Davis to ask the U.S. District Court of Eastern Kentucky to reverse the jury verdict against former Rowan County Kentucky Clerk Kim Davis who was sued by two same-sex couples for not issuing them marriage licenses. In September 2023, the Ermold plaintiffs asked for $50,000 each in damages and a jury awarded them a total of $100,000. Judge David Bunning has now awarded the plaintiffs an additional $246,000 in attorney’s fees and $14,000 in expenses.
This latest judgment now allows Liberty Counsel to ask the Court to reverse the jury’s verdict against Davis because there was insufficient evidence to award the plaintiffs monetary damages. If the motion is denied, Liberty Counsel will then appeal the case to the Sixth Circuit Court of Appeals.
The Ermold v. Davis case, along with a second case in Yates v. Davis, both involve a same-sex couple who sued Davis in 2015 following the Supreme Court’s Obergefell v. Hodges decision regarding “same-sex marriage.” During the trial, two juries heard the same evidence and the same arguments in both cases. The jury in the Yates case awarded zero damages because that is what the evidence required. The plaintiffs in that case originally asked for $300,000 in damages.
However, without any evidentiary support, the Ermold jury reached a verdict of $50,000 for each plaintiff. The evidence presented at trial simply does not support that verdict because there were no lost wages and they presented no supporting testimony regarding emotional injury. The Ermold jury verdict is unsound and easily sets this case up for an eventual route to the U.S. Supreme Court where religious freedom will be central to the argument along with the issue that the 2015 case of Obergefell v. Hodges was wrongly decided and should be overturned.
The plaintiffs in Ermold asked for damages alleging that David Ermold was terminated from the University of Pikeville because of the Kim Davis case. During the trial, the Human Resource Director testified that was not true and that Ermold’s position was downsized along with other positions. Losing their basis to allege damages, the Ermold plaintiffs then changed gears during the trial to allege they should receive damages for hurt feelings. But they presented no evidence to support this allegation.
The Ermold case should never have gone to the jury. Judge Bunning also improperly allowed questions concerning whether any potential juror had religious or moral objections to “same-sex marriage.” The judge overruled Liberty Counsel’s objection, and that permitted the plaintiffs to exclude all jurors that have religious beliefs and those who had objections to “same-sex marriage.” That question essentially excluded jurors based on religion, which is unlawful under current legal precedent and federal law.
In addition, under Rule 50 of the Federal Rules of Civil Procedure, a district court judge is prohibited from giving a case to the jury when the evidence presented during the trial is clearly insufficient to warrant any damages. Both David Ermold and David Moore testified under oath that “I do not know how to calculate the damages that Kim Davis caused us” and stated under oath that “maybe the violation has no value.” Plaintiffs are required to provide evidence of damages which cannot be based on speculation or guesswork. Because the plaintiffs provided the jury with no evidence whatsoever to give the jury any basis upon which to enter a damages verdict, the judge should never have given the case to the jury. He should have entered a directed verdict stating that the plaintiffs failed to provide sufficient evidence from which the jury could award damages. Sixth Circuit case law states that the mere testimony of a plaintiff alleging embarrassment, humiliation, or some emotional injury, without any other evidence of damages, cannot suffice to merit a damages award. The judge denied Liberty Counsel’s motion on this issue and sent the case to the jury. Giving the case to the jury was impermissible, and that makes the verdict for damages reversible error, in addition to the constitutional issues.
Liberty Counsel argued that Davis is not liable for any damages because she was entitled to a religious accommodation from issuing marriage licenses under her name and authority that conflicted with her religious beliefs. When the newly elected Republican Governor Matt Bevin took office in December 2015, he granted religious accommodation to all clerks by Executive Order. Then in April 2016, the legislature unanimously granted religious and conscience accommodation to all clerks from issuing marriage licenses that conflict with their religious beliefs.
However, Davis was entitled to an accommodation of her sincerely held religious beliefs about marriage under both the First Amendment and Kentucky law and she should not be held liable for requesting an accommodation, which she did receive in December 2015. Even assuming Obergefell is not a flawed decision, which it is, the High Court’s opinion did not mean that same-sex couples have a right to receive a “marriage license” from a specific individual and it did not direct that every government official in America had a duty to put their stamp of approval on that “marriage license.”
Regarding Davis, the issue of liability and damages has never been reviewed. The matter that went to the U.S. Supreme Court a few years ago on qualified immunity involved a preliminary appeal. Since that time, the cases have had discovery, two hearings and now final judgments on liability and on damages. Therefore, this case is ready to go up to the Sixth Circuit Court of Appeals and from there to the U.S. Supreme Court.
Liberty Counsel Founder and Chairman Mat Staver said, “This case is far from over. Because of Kim Davis, every clerk in Kentucky now has the freedom to serve as an elected official without compromising their religious convictions and conscience. This case has the potential to extend the same religious freedom protections beyond Kentucky and to overturn Obergefell v. Hodges, which was wrongly decided and should be overturned.”
