Kim Davis could be prosecuted for refusing same-sex marriage licenses

Former Rowan County Clerk Kim Davis – Photo: Liberty Counsel, via Facebook.

Kim Davis, the former Kentucky county clerk who refused to grant marriage licenses to same-sex couples after marriage equality was legalized in the United States, is not immune by her former post to be sued by the couples she rejected, a federal appeals court ruled.

In an opinion issued Sept. 29, the U.S. 6th Circuit Court of Appeals found that Davis did not enjoy “qualified immunity,” the legal principle that bars government officials from being sued in court. performance of their duties, unless a complainant shows the official. violated “clearly established statutory or constitutional rights”.

The court found that Davis violated the “clearly established” rights of two same-sex couples – David Ermold and David Moore, and James Yates and Will Smith – to marry when she refused to issue marriage licenses to couples. qualified people in the county so that they would not be forced to issue same-sex marriage licenses and could not be charged with specifically discriminating against same-sex couples.

Davis, an apostolic Christian, based her opposition to same-sex marriage largely on her religious beliefs that same-sex unions are immoral, reports Law and crimean online legal information site.

“Qualified immunity asks only two questions: Did Davis violate the plaintiffs’ constitutional rights, and if so, were those rights clearly established? Judge Richard Allen Griffin wrote on behalf of the court. “He does not ask whether Davis had any justification for taking action (or, as here, inaction) that violated the plaintiffs’ constitutional rights.

But that’s exactly what Davis is asking us to judge: whether she has an ‘affirmative free exercise defense under the First Amendment’ for her decision not to issue marriage licenses. Such a defense is unrelated to qualified immunity; on the contrary, it “can be effectively reconsidered after a final judgment”.

The court ruling marks the second time Davis’ qualified immunity request for repeatedly denying marriage licenses has been denied by the court. Three years ago, the court found that the plaintiffs had successfully argued that Davis was not entitled to qualified immunity.

Griffin noted in that more recent opinion that the “fundamental fact” of the case “has not changed” since the court last heard the case — and that Davis understood, based on a letter from the Governor at the time. Steve Beshear, that all county clerks were required to issue licenses to qualified same-sex couples.

“In the summer of 2015, Kim Davis served as Rowan County, Ky., clerk,” the opinion reads. “One of his responsibilities was to issue marriage licenses. But same-sex marriage offended his religious beliefs, so when the Supreme Court recognized a constitutional right to same-sex marriage in Oberfell v. HodgesDavis took matters into his own hands.

According to the facts of the case, Yates and Smith had attempted to obtain a marriage license five times, only to be turned down by Davis or other members of the clerk’s office working under her direction. Ermold and Moore tried three times and also failed. After being rejected for the third time, Davis reportedly told Ermold and Moore that she could not license them “under the authority of God.”

The two couples were eventually able to secure licenses after a judge ordered the bureau to issue the licenses while Davis was in jail for contempt of court.

Additional facts of the case demonstrated that Davis requested an accommodation from the state legislature that would allow him to refuse to issue licenses. But the legislature did not grant this exemption, choosing instead—long after Davis’ release from prison—to remove the names and titles of county clerks from all marriage licenses granted by the Commonwealth of Kentucky.

In 2018, Davis, who left the Democratic Party and became a Republican over her opposition to same-sex marriage, then lost her re-election bid to a Democrat in the general election.

Last week’s ruling now allows the plaintiffs’ trial to move forward and sets up a jury trial to determine the amount of damages the plaintiffs deserve. Because the courts have ruled in their favor, same-sex couples have for several years expected someone – either Davis, Rowan County or the state of Kentucky – to pay $222,000 in legal fees incurred. to file the lawsuit.

But Liberty Counsel, the conservative law firm representing Davis, argued that Davis is not and should not be required to pay any portion of plaintiffs’ legal fees, leaving that burden on the state or county.

Liberty Counsel also said in a press release that it will request that the 6th Circuit fully reconsider last Thursday’s decision, on the basis that Davis should have been entitled to accommodation because of her “sincere religious beliefs – even if she does not does not deserve “qualified immunity”.

If the entire 6th Circuit “agrees that the issue of religious accommodation is not ripe for consideration, Liberty Counsel will proceed to trial raising not only qualified immunity, that the right has not been clearly established, but also religious freedom, among other defences,” the organization wrote in its statement, noting that some Supreme Court justices have previously indicated they may be inclined to take up the case to address the issue of religious freedom.

Therefore, it seems inevitable that the highest court in the land will revisit the issue of same-sex marriage if – or when – Liberty Counsel appeals an unfavorable 6th Circuit ruling.

“Kim Davis has a right to live out his religious beliefs and was entitled to an accommodation of his beliefs under the First Amendment and under the Kentucky Constitution and the Kentucky Religious Freedom Restoration Act,” said Mat Staver, Founder and president of Liberty Counsel, said in a statement. “Kim Davis is not liable for damages because she was entitled to religious accommodation based on her sincere religious beliefs about marriage. We are confident that we will ultimately succeed in the defense of religious freedom. This case is far from over.


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