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Anti-Gay Marriage Former County Clerk Kim Davis Loses Bid for Qualified Immunity in Lawsuit Brought by Same-Sex Couples, Again


Kim Davis poses with white crosses

Kim Davis, the former county clerk from Kentucky who refused to grant marriage licenses to same-sex couples after marriage equality was the law of the land, does not have qualified immunity, a federal court of appeals ruled on Thursday.

Davis violated the “clearly established” rights of two couples – David Ermold and David Moore; and James Yates and Will Smith – to marry “when she declined to issue marriage licenses based on her belief that same-sex marriage was immoral,” Judge Richard Allen Griffin of the Sixth Circuit Court of Appeals wrote in the brief, five-page opinion.

This is the second time Davis lost an effort to claim qualified immunity for her repeated, unlawful denials of marriage licenses.

As the court noted, over three years ago, during the motion-to-dismiss stage, the plaintiffs “pleaded a plausible case” against the disgraced former clerk who was unseated by a Democrat in 2018.

“At the summary-judgment stage, discovery proved the facts plaintiffs pleaded,” Griffin explained. “Thus, Davis is still not entitled to qualified immunity, and we again affirm the district court.”

The unpublished opinion notes that the “basic facts” of the case “have not changed” since last time the court considered the issues.

“In the summer of 2015, Kim Davis was the County Clerk for Rowan County, Kentucky,” the opinion recounts. “One of her responsibilities was to issue marriage licenses. But same-sex marriage offended her religious beliefs, so when the Supreme Court recognized a constitutional right to same-sex marriage in Obergefell v. Hodges, Davis took matters into her own hands.”

The then-clerk’s method of enacting her anti-gay marriage agenda was by declining to issue marriage licenses to “everybody,” Griffin notes, an action that was taken after she “read and understood” a letter from then-governor Steve Beshear instructing all county clerks to issue marriage licenses to same-sex couples.

“It was her decision to implement this policy in Rowan County, not anyone else’s, and she implemented the policy in direct response to the Obergefell decision,” the court goes on to say.

The court catalogs the plaintiffs’ experience with Davis’ dictate:

The Yates plaintiffs tried to obtain a marriage license from the Rowan County Clerk’s office five times but were denied each time. The Ermold plaintiffs tried three times and were equally unsuccessful. On the Ermold plaintiffs’ final attempt, Davis explained that she could not issue them a license “under God’s authority.” Eventually, both sets of plaintiffs were issued a marriage license by a Rowan County Deputy Clerk while Davis was in jail for contempt of court.

Additional discovery showed that Davis “sought a marriage-license accommodation from the state legislature because of her firmly held religious belief that marriage exists exclusively between one man and one woman.” But, Griffin noted, “the legislature did not act on her request.”

All this discovery, the appeals court reasoned, was enough for the district court to deny Davis’s qualified immunity request again.

Performing their own analysis of the Supreme Court-created doctrine that limits liability for certain public officials, Griffin boils down the analysis into two questions: (1) “whether the facts that a plaintiff has . . . shown . . . make out a violation of a constitutional right,” and (2) “whether the right at issue was ‘clearly established’ at the time of [the] defendant’s alleged misconduct.”

The court offers a quick analysis of that test applied to the facts.

“As the district court recognized and as we have outlined above, those facts were proven in discovery, so plaintiffs have not only ‘alleged’ but also now ‘shown’ that Davis violated their constitutional right to marry,” Griffin writes. “And, as we held three years ago, that right was ‘clearly established in Obergefell.’ Therefore, the district court correctly determined that Davis is not entitled to qualified immunity.”

Griffin goes on to take notice of some of Davis’s other arguments – such as her claim that her First Amendment rights were violated – but makes short shrift of them by simply observing that they are not part of a qualified immunity analysis.

The ruling sets up a jury trial to determine what amount of damages the plaintiffs are entitled to obtain from the anti-gay marriage clerk.

The full ruling is available below:

[image via Ty Wright/Getty Images]

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