Kim Davis, the federal worker who illegally denied marriage licenses to gay couples in the 2010s, is looking for a second chance under the Trump administration. Now Davis is not only appealing to overturn her conviction, her lawyers aspire to overturn equal marriage rights entirely.
In 2015, after the Supreme Court decision in Obergefell v Hodges legalized gay marriage nationwide, Davis refused to issue marriage licenses to same-sex couples at the Kentucky county clerk office where she worked. Although marriage equality was officially the law of the land, Davis claimed that she was “under God’s authority.”
Two couples sued Davis for directing her office to deny them marriage licenses. Davis ultimately spent five days in jail, and in 2023 she was ordered to pay $100,000 in punitive damages to one couple—David Ermold and David Moore.
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Davis has been fighting the order ever since. Her appeals case is handled by Liberty Counsel, a fundamentalist Christian organization, according to the Kentucky Lantern. The case is currently being heard by the US Court of Appeals for the Sixth Circuit in Cincinnati, but her lawyer—Liberty Counsel founder and chairman Matthew Staver—is plotting to take the case all the way to the Supreme Court.
Once there, he feels confident the conservative majority will overturn marriage equality, specifically referencing the overturning of Roe v Wade. “I think … it’s not a matter of ‘if,’ it’s a matter of ‘when’ Obergefell will be overturned,” Staver said. “I have no doubt that Obergefell will be overturned, and the issue will be returned back to the states as it was before 2015.”
The court heard oral arguments on Thursday. So far, Staver has laid out a two pronged approach: discrediting the emotional distress the couple suffered (the basis for their punitive damages award) and claiming First Amendment rights for Davis.
William Powell of the Institute for Constitutional Advocacy and Protection argued on behalf of the plaintiffs, pointing to the prior precedent on emotional damages. “Plaintiffs here testified extensively about the emotional harm they suffered as a result of the denial of their rights,” Powell said. “There was extensive testimony from both plaintiffs, and I think that testimony stacks up quite well to other cases where this court has affirmed emotional distress damages.”
As for Davis’s claim to First Amendment protections, Powell argued that these apply to private citizens, not someone acting in an official capacity on behalf of the government. “When a government official acts under color of state law, they do not have that kind of First Amendment protection,” Powell said. “Even if you disagreed with that, and even if you thought that Miss Davis had some kind of First Amendment protections in her job, it would have to be for speech that she took in her private capacity outside of her official duties. And that is not what happened here.”
“In this case,” he added, “the accommodation that (Davis) gave herself was to make it the official policy of her entire office not to issue marriage licenses to same sex couples, even her subordinates. And that kind of an accommodation … took the law into her own hands, and there was no possible justification for that.”
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