Liberty Counsel will request a rehearing en banc from the Sixth Circuit Court of Appeals on behalf of former Rowan County, Kentucky Clerk Kim Davis, regarding her qualified immunity defense under the First Amendment and religious freedom rights in the cases of Ermold v. Davis and Yates v. Davis.
The Sixth Circuit agreed with U.S. District Court Judge David Bunning in denying qualified immunity. However, the appeals court only addressed qualified immunity and did not address any other defense, such as religious freedom accommodation. The Sixth Circuit ruled that it does not yet have jurisdiction on that matter since that portion is not a final order.
Liberty Counsel will request the full Court of Appeals to review the ruling, and if the full Court agrees that the matter of religious accommodation is not ripe for review, Liberty Counsel will proceed to trial raising not only qualified immunity, that the right was not clearly established, but also raise religious freedom, among other defenses. The religious freedom issue is what some Supreme Court Justices already indicated was worthy of review when the case is ready for final review.
Liberty Counsel argues that Davis is not liable for damages because she was entitled to a religious accommodation, which previous Governor Matt Bevin and the legislature unanimously granted, from issuing marriage licenses that conflict with her religious beliefs.
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. 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.
Liberty Counsel Founder and Chairman Mat Staver said, “Kim Davis has a right to live out her religious beliefs and was entitled to an accommodation of her beliefs under the First Amendment and under the Kentucky Constitution and the Kentucky Religious Freedom Restoration Act. Kim Davis is not liable for damages because she was entitled to a religious accommodation based on her sincerely held religious beliefs about marriage. We have confidence that we will ultimately succeed on the religious freedom defense. This case is far from over.”