Then-Rowan County Clerk Kim Davis celebrates her release from the Carter County Detention Center on Sept. 8, 2015. With her are her attorney, Mat Staver, right, and former Arkansas Gov. Mike Huckabee, then a candidate for the Republican nomination for president. Davis was ordered to jail the previous week for contempt of court after refusing a federal judge’s order to issue marriage licenses to same-sex couples. (Photo by Ty Wright/Getty Images)
FRANKFORT — The 6th U.S. Circuit Court of Appeals has denied a request from former Rowan County Clerk Kim Davis to strike down a federal jury’s judgment against her, which came with a $100,000 price tag.
The opinion came down Thursday, a little more than a month after a three-judge panel heard oral arguments on the matter.
Senior Judge Helene N. White, appointed by President George W. Bush, delivered the opinion. Judge Andre B. Mathis, who was appointed by President Joe Biden, concurred. Judge Chad A. Readler, who was appointed by President Donald Trump, concurred in part.
Davis’ lawyer has argued that when she refused to issue a marriage license to same-sex couple David Ermold and David Moore a decade ago, she was protected by the First Amendment, which promises freedom of speech, religion and the press.
Kim Davis’ lawyer eager for next step as he argues same-sex marriage case before appeals panel
The judges did not agree, writing in their Thursday opinion that “Davis cannot raise a Free Exercise Clause defense because she is being held liable for state action, which the First Amendment does not protect.”
The judges furthermore called Davis’ actions while a county clerk a “quintessential state action.”
“The First Amendment shields Davis where she ‘functioned as a private citizen,’ but not where she “engaged in state action,’” the opinion states.
Davis’ lawyer, Liberty Counsel founder and chairman Mat Staver, also argued the $100,000 Davis was ordered to pay was arbitrary because one could not quantify emotional damage. The judges rejected that, pointing to case law as a basis and citing testimony from the men about feeling frightened and humiliated.
Staver also argued that Ermold and Moore could have gotten their license elsewhere, which the judges said “only compounded the stigma.”
Staver previously told the Lantern that his team’s goal is for the appeal to reach the U.S. Supreme Court and that, should the appeals panel rule against him, he would appeal to the higher court.
The case would then provide the justices an opportunity to re-evaluate Obergefell v. Hodges, the 2015 decision that guaranteed same-sex couples marriage rights, on the same grounds that the court in 2022 used to overturn the federal right to abortion, Staver said.
In a press release following the ruling, Liberty Counsel said it “intends to seek further review” before the full appeals court.
“The full Sixth Circuit Court of Appeals will have a chance to give Kim Davis justice in this case since the emotional distress damage award against her in her individual capacity is barred by the First Amendment,” Staver said in a statement. “This case underscores why the U.S. Supreme Court should 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. The First Amendment precludes making the choice between your faith and your livelihood.”
Judge Readler wrote in his partial concurrence that “right or wrong, the fact remains that we all must follow Obergefell, the law of the land.”
He also addressed the First Amendment argument, writing that Davis’ denial of the marriage license “exceeded the scope of any personal right.”
The appeals panel ruling affirmed a decision by U.S. District Judge David L. Bunning.