The Case of Former Kentucky County Clerk Kim Davis and the Future of Obergefell — and Religious Liberty

Remember Kim Davis, the county clerk in Kentucky who declined to issue marriage licenses for people of the same sex in 2015? She’s still in litigation, and her case could end up before the U.S. Supreme Court.

Past

The U.S. Supreme Court somehow found a “fundamental right” to same-sex marriage in the U.S. Constitution in 2015. In a 5-4 vote, the court held in Obergefell v. Hodges that this right was found in the Due Process and Equal Protection clauses.

Christians understood the impact of such a decision. Christian county clerks, for example, knew they’d have to issue marriage licenses to same-sex couples — or even three or more people claiming the right to “marry” — or face government retaliation.

Davis, who refused to issue licenses for these “marriages,” asked then-governor Steve Beshear, a Democrat, to issue an executive order to allow clerks a religious accommodation. He said no.

Several couples filed lawsuits. After losing in lower courts, Davis appealed to the Supreme Court, which refused to hear her case. The high court has since ruled in favor of Christians in similar cases.

Matt Bevin, a Republican elected governor after Beshear, issued an executive order to remove clerks’ names from the marriage license form. Lawmakers provided a religious and conscience accommodation to all county clerks who objected to issuing “marriage” licenses.

A federal court eventually dismissed all the lawsuits against Davis, but some of the parties sought damages. In one case, Yates v. Davis, the jury awarded no damages (plaintiffs asked for $300,000). The jury in Ermold v. Davis awarded the two plaintiffs a total of $100,000. The judge awarded them $246,000 in attorney’s fees and $14,000 in expenses.

Present

Davis asked the U.S. Court of Appeals for the Sixth Circuit to overturn the damages verdict in Ermold.

Davis’s legal counsel, Liberty Counsel, on Friday submitted a reply brief in the case. Liberty Counsel contends that “religious freedom rights ‘pre-date’ the 2015 Obergefell v. Hodges decision and entitled Davis to a religious accommodation from issuing such licenses.”

Liberty Counsel also said there is no evidence to support the jury’s award of damages in the case — and that Obergefell should be overruled.

Future

If the Sixth Circuit declines to protect Davis’s rights, she will appeal to the Supreme Court.

“This case has the potential to overturn Obergefell v. Hodges because that decision threatens the religious liberty of many Americans who believe that marriage is a sacred institution between one man and one woman,” said Mat Staver, Liberty Counsel founder and chairman. “The First Amendment precludes making the choice between your faith and your livelihood.”

In Dobbs v. Jackson Women’s Health Organization (2022), the court voted 6-3 to overturn Roe v. Wade (1973) and Casey v. Planned Parenthood (1992), returning the issue of abortion back to the states. In his concurring opinion, Justice Clarence Thomas disagreed with the majority’s view that nothing in the court’s opinion should be understood to cast doubt on precedents that don’t concern abortion.

“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he wrote (PDF).

Do you think the Supreme Court would ever overturn Obergefell, returning the marriage issue to the states?

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