THE case of Kim Davis, the despicable Christian zealot who was briefly jailed for refusing marriage licences to gay couples, took a new turn on Friday when a federal appeals court upheld a lower court ruling awarding $224,000 in attorney’s fees and costs to the couples affected by her bigotry.
The federal panel agreed with a lower court that the Commonwealth of Kentucky is responsible for paying the award, even though lawyers for Governor Matt Bevin, who fully supported her homophobia, argued that she should personally be held liable for the legal costs.
However, if Davis now thinks that she is off the hook, she may be in for a horrible surprise.
In a separate appeal involving court costs and legal fees claimed by another couple – David Ermold and David Moore – the 6th Circuit on Friday agreed with a district judge that Davis held sovereign immunity as a public official but did not qualified for immunity as an individual. The Ermold case is still in its early stages, and no actual money has been awarded yet.
According to this report, the Sixth Circuit Court ruled that the former county clerk could still be held liable for civil claims by two of the couples to whom she denied a marriage licence.
In mid-2015, when the US Supreme Court ushered in same-sex marriage across the country with its landmark ruling in Obergefell v. Hodges, Davis had been presiding over the clerk’s office in Rowan County. That summer, however, Davis claimed that her religious beliefs as an Apostolic Christian blocked her from issuing marriage licenscs to gay couples.
Two of the couples Davis turned away brought federal complaints, and Davis appealed to the Sixth Circuit after a judge in Ashland found that qualified immunity did not shield Davis in her individual capacity.
Affirming that determination on Friday, US Circuit Judge Richard Griffin wrote for a three-judge panel that the couples Davis turned away were exercising clearly established rights.
For a reasonable official, Obergefell left no uncertainty. For Davis, however, the message apparently didn’t get through. And it still doesn’t appear to have gotten through: She now argues that Obergefell doesn’t even apply to her conduct.
Trying to shift the focus to state liability, Davis argued that the couples who sued her could have gotten their marriage licenses elsewhere in Kentucky.
Griffin dismissed the argument out of hand, noting that Davis provided:
No legal authority for that proposition. We can find none. And we know why: that’s not how qualified immunity works, and that’s not how constitutional rights work.
Going further, Griffin emphasised that no iota of the Constitution or constitutional law says:
While US Circuit Judge Helene White joined the ruling in full, US Circuit Judge John Bush concurred only in part.
That a government official may infringe constitutional rights so long as another official might not have.
Unlike the majority, I don’t find that Davis’s actions constituted an outright ban of same-sex marriage … the facts … are more nuanced than that.
Bush voiced support for Davis’ claim that:
Nothing prevented each plaintiff couple from travelling outside Rowan County, obtaining a marriage license from a different county clerk, and returning to Rowan County to solemnize their marriage.
However Bush stated that immunity does not shield Davis since:
She knew or ought to have known, to a legal certainty, that she could not refuse to issue marriage licences … because of moral disapproval of homosexuality.
Referring to the Court of Appeals ruling William E Sharp, cooperating attorney for the American Civil Liberties Union (ACLU) in Kentucky said:
By affirming the sizeable fee award, the Court also sent a strong message to other government officials in Kentucky that it is not only unconstitutional to use public office to impose one’s personal religious views on others, but that it also can be a very expensive mistake.
And Ria Tabacco Mar, senior staff attorney for the ACLU, added:
Kim Davis was an outlier who has been replaced by Kentucky voters. Today’s decision brings another form of vindication for the Rowan County couples who continued the good fight long after marriage equality became the law of the land.
This case is not over. Kim Davis sought a religious accommodation, and today every Kentucky clerk benefits from her efforts thanks to Gov. Matt Bevin and the entire General Assembly. I believe Kim Davis will prevail on the individual damages claim.
Thoughts and prayers are with her.
Hat tip: BarrieJohn