Here’s Why Former Kentucky County Clerk Kim Davis’s Lawyers Say She’s Not Liable for Damages

In 2015, the U.S. Supreme Court ruled that two people of the same sex had a constitutional right to “marry” in Obergefell v. Hodges.

Kim Davis, the clerk of court in Rowan County, Kentucky, refused to issue marriage licenses under her name to homosexuals, which she considered to be in conflict with her belief that marriage is the God-ordained union between one man and one woman. Davis asked the then-governor, a Democrat, to issue an executive order allowing a religious accommodation for county clerks who objected to homosexual “marriage.” She ended up turning away all couples for marriage licenses.

Twelve people sued Davis for denying them licenses. A court temporarily barred her from applying her no-issue policy to future couples but issued a stay. A three-judge panel of the United States Court of Appeals for the Sixth Circuit refused to extend the stay. Davis filed an emergency appeal to the U.S. Supreme Court, but the court refused to hear arguments.

A federal judge held Davis in contempt of court when she continued to refuse to issue marriages licenses to homosexuals. After she was released from jail, she returned to work. Sources reported that Davis created several forms with her name and reference to the clerk of court removed.

When Matt Bevin was elected governor in November 2015, he issued an executive order to remove clerks’ names from the marriage license form. A federal judge dismissed all lawsuits against Davis.

The parties have continued to seek legal fees and damages from Davis. Liberty Counsel, Davis’s legal counsel, announced last Friday that it filed a response brief in the ongoing litigation (emphasis added):

Liberty Counsel argues that Davis is not liable for damages because she was entitled to a religious accommodation, which Governor Matt Bevin and the legislature eventually unanimously granted, from issuing marriage licenses that conflict with her religious beliefs.

In this reply brief, Liberty Counsel presents new factual and U.S. Supreme Court decisions in Fulton v. City of Philadelphia, Kennedy v. Bremerton School District and Masterpiece Cakeshop v. Colorado Civil Rights Commission, that the Sixth Circuit did not review in the last appeal that affirms Davis’ First Amendment free exercise defense.

In Kentucky, applicants can go to any authorized location to obtain a marriage license. In fact, one of the plaintiffs in this case traveled two hours to work each day. Yet he refused to travel an additional five minutes from his residence to the nearest adjacent county to obtain the license. That does not present a burden to obtain a license. He clearly only wanted to obtain his license from the Rowan County office with Davis’ signature on it.

The Supreme Court in Fulton, Kennedy, and Masterpiece Cakeshop ruled in favor of religious freedom.

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