Kim Davis Has a Plan to Overturn Same-Sex Marriage Nationwide
The Kentucky clerk asks a right-wing appeals court to rule that the Supreme Court's 2015 ruling was wrongly decided.
Kim Davis, the Kentucky county clerk who went to jail rather than issue marriage licenses to same-sex couples, has set in motion her ultimate game plan to overturn the U.S. Supreme Court’s 2015 ruling legalizing marriage equality.
The pugilistic former clerk of Rowan County has officially appealed an April ruling by U.S. District Court Judge David Bunning that ordered her to pay $360,000 to David Ermold and David Moore for refusing to issue them a marriage license.
Davis claimed her religious beliefs as an Apostolic Christian prevented her from condoning homosexuality or same-sex marriage.
She was sentenced to six days in jail for contempt of court for violating a judge’s order to issue the licenses. After being released, she eventually agreed to permit one of her deputies to issue same-sex marriage licenses.
However, Bunning refused to set aside a jury verdict that found Davis liable for causing Ermold and Moore “ongoing stress, anguish, humiliation, and tension” from her refusal to issue them a license. The jury imposed damages of $100,000, with Bunning finding, in a separate ruling, that Davis was also responsible for paying the couple’s attorneys’ fees.
In a brief filed in the 6th U.S. Circuit Court of Appeals, lawyers from the right-wing legal organization Liberty Council, who are representing Davis, argued that Ermold and Moore failed to provide sufficient evidence that they were harmed by Davis’s refusal to give them a marriage license.
They also argue that Bunning was wrong not to allow Davis a special accommodation for her sincerely held religious beliefs, as guaranteed by the First Amendment and the Kentucky Religious Freedom Restoration Act.
And they argue that Bunning erred in finding that the Supreme Court’s Obergefell v. Hodges ruling “created a clearly established constitutional right that superseded Davis’s preexisting fundamental, textual constitutional rights to religious exercise.”
Perhaps even more consequentially, Liberty Counsel has said they intend to appeal the case to the U.S. Supreme Court, hoping to convince the six conservative justices on the nine-member court to overturn Obergefell.
“[W]e intend to take this case all the way to the U.S. Supreme Court, where we will argue that the wrongfully decided Obergefell case should be overturned,” Liberty Counsel said in a press release that doubled as a fundraising appeal.
By overturning Obergefell, bans on same-sex marriage that are still on the books or enshrined in state constitutions in 30 states would immediately take effect, making it illegal — once again — for same-sex couples to marry in those jurisdictions.
If that were to happen, marriages performed legally in the other 20 states would still be recognized by the federal government and are supposed to be recognized by state governments, under the Respect for Marriage Act signed into law by President Joe Biden in 2022.
But it’s likely that Liberty Counsel and other conservative organizations would bring subsequent legal challenges to those provisions.
“To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience,” Davis said in a statement. “It is not a light issue for me. It is a Heaven-or-Hell decision. For me, it is a decision of obedience.”
Chris Hartman, executive director of the Fairness Campaign, Kentucky’s top LGBTQ advocacy organization, called Liberty Counsel’s actions “desperate,” and accused them of using Davis as a prop to assist their fundraising efforts.
Hartman also acknowledged that the group’s strategy poses a real threat to LGBTQ rights.
“The threat of anti-LGBTQ hate groups like the Liberty Counsel is real,” he continued. “And it comes as no surprise that they are seeking to overturn LGBTQ marriage in America. With an arch-conservative Supreme Court that’s already upended half a century of abortion rights, anything is unfortunately possible.”
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