Former Clerk Who Refused to Issue Marriage Certificates Loses Latest Appeal in Unanimous Court Ruling

The former Kentucky clerk who cited "God's authority" in refusing to issue marriage licenses after the Supreme Court legalized marriage equality in 2015 has lost her latest appeal in a unanimous ruling.

Kim Davis' ongoing legal battle met its latest defeat when "All three judges on the panel of the U.S. Court of Appeals for the 6th Circuit – which included one Trump appointee – agreed that Davis should lose her appeal," Law Dork reported in an analysis of the outcome.

"The three-judge panel unanimously rejected Davis' arguments that she was immune to the lawsuit and upheld a jury award of $100,000 in emotional damages to plaintiffs David Ermold and David Moore," Courthouse News detailed.

"The damages were awarded after a federal judge ruled that Davis violated the plaintiffs' rights when she denied them a marriage license," Courthouse News went on to add. "Davis was also ordered to pay an additional $260,000 in legal fees."

"Judge Helene White wrote the court's opinion in the unending case, upholding the liability determination against Davis and damages awarded," Law Dork explained.

In her opinion, White wrote, "As Davis sees it, issuing Plaintiffs a marriage license would have violated her own constitutionally protected religious beliefs; thus, she asserts, she cannot be held liable," the writeup relayed.

However, the opinion added, "The First Amendment shields Davis where she 'functioned as a private citizen,' but not where she 'engaged in state action.'"

Law Dork also detailed that White ruled "Davis's argument that she was entitled to qualified immunity had, in effect, already been decided," with the opinion recalling, "This court has rejected that argument twice" and asserting that "Davis's argument is weak."

However, this latest in a long string of losses for Davis and her lawyers across the past 10 years "still might not be the end," Law Dork noted.

While Judge Andre Mathis ("a Biden appointee," Law Dork specified) agreed with the opinion, "Judge Chad Readler, a Trump appointee... wrote separately to raise three points," the article said.

Readler did not dissent, but he did refer back to the Supreme Court's 2015 ruling in Obergefell v. Hodges, which struck down anti-marriage laws and cleared the way for same-sex families in the whole country to participate in marriage at a level equal to that of heterosexual families.

"Readler's opening is two paragraphs about how Obergefell v. Hodges... was 'far from unanimous,'" Law Dork relayed. "Although that is obviously true, as a factual matter, to what end is it raised here?"

The article went on to suggest an answer to that question, noting that "Davis and her Liberty Counsel and other lawyers argued in their briefing before the Sixth Circuit that Obergefell should be overturned."

"Davis raised it at the Sixth Circuit, her lawyers wrote, despite the fact that it was the law of the land because she wanted... 'to preserve' the argument for a potential Supreme Court appeal," Law Dork detailed.

As previously reported, GOP lawmakers in several states have taken aim at marriage equality since the last presidential election. Resolutions attacking family freedoms have been introduced in Montana, North Dakota, South Dakota, and Michigan, all coming hot on the heels of a call from Idaho state GOP lawmakers for the Supreme Court to strike down Obergefell.

Idaho's resolution was passed by the state's House of Representatives in January, but the measure did not have unanimous support, with 15 GOP state lawmakers voting against the resolution along with the chamber's nine Democratic members.

The Idaho resolution was backed by a Massachusetts-based group that has opposed marriage equality since the 1990s and is regarded as a hate group by the Southern Poverty Law Center.

The Supreme Court's 2015 ruling was closely divided, with four of the Court's nine justices dissenting. Two of those justices, Clarence Thomas and Samuel Alito, have continued to invite a revisitation of the issue by the Court, and with three Trump appointees having shifted the balance of the bench toward the hard right, any such reconsideration might well result in the Court snatching marriage rights away from millions of Americans in committed same-sex relationships.

That has been the scenario envisioned by watchdogs since the Court disregarded settled law and undid a half-century of American law by rescinding reproductive freedoms in 2021 and striking down Roe v. Wade, the 1973 Court ruling that found a Constitutional right for a woman to end her pregnancy.

Resolutions are insufficient to prompt such a review from the Supreme Court, but a challenge to a state law could find its way to the Court. Alternatively, Law Dork noted, "Davis and her lawyers could now seek Supreme Court review" and "raise the question of overturning Obergefell directly to the justices – the argument that Davis's lawyers said she preserved before the Sixth Circuit."

The Respect for Marriage Act, passed in 2021 after the Court's rollback of reproductive freedoms, would act as something of a backstop on a Supreme Court curtailment of marriage equality, but would not completely protect the nation's same-sex families.