Today, the U.S. Supreme Court declined to review Liberty Counsel’s petition for writ of certiorari in Davis v. Ermold, the case involving former Rowan County Kentucky Clerk Kim Davis. The High Court’s denial of the review was without a ruling on the merits. By declining to hear the case, SCOTUS leaves the wrongly decided Obergefell opinion in place. The Court also leaves unresolved an important constitutional question of whether the First Amendment’s complementary protections of Free Speech and Free Exercise Clause protect government officials sued in their individual capacity for actions taken based on their religious beliefs.
The denial also leaves in place a Sixth Circuit Court of Appeals ruling that held Davis personally liable for a same-sex couple’s “hurt feelings” from not getting a marriage license from Davis due to her upholding her religious views on marriage.
Believing marriage as a union between one man and one woman, Davis ceased issuing any marriage licenses from June 29 to early September 2015 while she sought an accommodation for her religious beliefs. But two sets of plaintiffs, including David Ermold and David Moore, sought to mock Davis’ Christian faith by forcing her name on their marriage license through litigation. Their attempt failed when Gov. Steven Beshear agreed that the altered license without Davis’ name was valid. From early September onward, licenses were issued without Davis’ name on them. In December 2015, newly elected Governor Matt Bevin issued an executive order granting the accommodation Davis sought. Then in April 2016, the Kentucky legislature unanimously codified the religious exemption by removing the names of all clerks from the state’s marriage licenses.
Prior to this, however, the courts used Obergefell to deny her a religious accommodation that unconstitutionally forced her to choose between her religious beliefs and her livelihood. Ermold and Moore could have gone to any number of nearby clerks to get a marriage license. But they wanted Davis’ name on their license. In 2017, Ermold and Moore amended their complaint and sued Davis in her individual capacity for emotional distress for “hurt feelings.” In addition to six days in jail, Davis was held liable for $360,000 in damages and attorney’s fees over their “hurt feelings” stemming from her religious expression.
Liberty Counsel’s petition cited several dissenting Justices from the 5-4 Obergefell opinion who predicted it would threaten the religious liberty of those who believe that marriage is a sacred institution between one man and one woman. Notably, Justice Clarence Thomas said that Obergefell would have “potentially ruinous consequences for religious liberty.” Justice Thomas’ prediction rang true for Davis.
Liberty Counsel Founder and Chairman Mat Staver said, “Davis was jailed, hauled before a jury, and now faces crippling monetary damages based on nothing more than purported hurt feelings. By denying this petition, the High Court has let stand a decision to strip a government defendant of their immunity and any personal First Amendment defense for their religious expression. This cannot be right because government officials do not shed their constitutional rights upon election. Like the abortion decision in Roe v. Wade, Obergefell was egregiously wrong from the start. This opinion has no basis in the Constitution. We will continue to work to overturn Obergefell. It is not a matter of if, but when the Supreme Court will overturn Obergefell.”
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Liberty Counsel Founder and Chairman Mat Staver said, “The U.S. Supreme Court’s decision to deny the petition for certiorari in Davis v. Ermold is heartbreaking for Kim Davis and for religious freedom. Kim received the religious accommodation she desired to have her name removed from marriage licenses in three forms just months after the 2015 Obergefell opinion was handed down. This accommodation came from Democrat Gov. Steven Beshear in September 2015, from Republican Gov. Matt Bevin in December 2015, and from a bill unanimously passed by the state legislature in April 2016. Kim Davis received the simple accommodation she requested, and David Ermold and David Moore received a license. But they wanted Kim’s name on their license. When that did not happen, they continued this case as a vendetta against Kim to punish her for her Christian faith that marriage is between one man and one woman.
“Government officials do not shed their constitutional rights upon election. The majority of Supreme Court Justices know Obergefell is wrong, and this case should have been granted review and reversed that unconstitutional opinion.
“We are committed to overturning Obergefell. Like the abortion issue in Row v. Wade, the Obergefell opinion has no basis in the U.S. Constitution. Marriage should have never been federalized. We have been and will continue working with state legislators and individuals to overturn Obergefell to return the marriage issue back to the states. It is not a matter of IF but WHEN Obergefell will be overturned. Kim Davis’ resolve will raise up many more challenges to this wrongly decided opinion. The day will come. The days of Obergefell are numbered.”
