Rowan County Clerk of Courts Kim Davis waves to a crowd of her supporters at a rally in front of the Carter County Detention Center on September 8, 2015 in Grayson, Kentucky. Davis was ordered to jail for five days for contempt of court after refusing a court order to issue marriage licenses to same-sex couples. (Photo by Ty Wright/Getty Images)
A federal jury is in the process of deciding how much Kim Davis, the former Kentucky county clerk who was jailed for her refusal to provide marriage licenses to same-sex couples, should pay in damages to those couples.
Davis had previously been the clerk for Rowan County, Kentucky. After the U.S. Supreme Court's 2015 decision in Obergefell v. Hodges in which the Court recognized same-sex marriage as a constitutional right, Davis refused to issue marriage licenses to same-sex couples on the grounds that following the law offended her religious beliefs.
Davis was jailed for six days for her refusal. In 2020, U.S. Supreme Court Justice Clarence Thomas wrote that "Davis may have been one of the first victims of this Court's cavalier treatment of religion in its Obergefell decision, but she will not be the last."
Two couples for whom Davis denied marriage licenses on multiple occasions — David Ermold and David Moore, and James Yates and William Smith sued Davis for violating their civil rights.
U.S. District Judge David Bunning, a George W. Bush appointee, granted the plaintiffs' motion for summary judgment in March 2022. Bunning noted in his order that Davis' own testimony that she considered having her name on a marriage license for a same-sex couple "a very clear heaven or hell issue," illustrated a knowing violation of the law, thereby rejecting Davis' defense of qualified immunity.
"Ultimately, this Court's determination is simple," wrote the judge. "Davis cannot use her own constitutional rights as a shield to violate the constitutional rights of others while performing her duties as an elected official."
The immunity issue was ultimately appealed to the U.S. Court of Appeals for the Sixth Circuit, where U.S. Circuit Judge Richard Allen Griffin also ruled against Davis.
Bunning did not rule on damages at the summary judgment phase and that aspect of the case now proceeds before a federal jury. It will decide what if any compensatory and punitive damages Davis must pay, along with pre- and post-judgement interests, costs and attorneys' fees.
The jury's deliberations are proceeding less than two weeks after Davis' long-time attorney Roger Gannam withdrew as counsel after Florida Gov. Ron DeSantis (R) appointed him to the Court of Appeals.
In an email to Law&Crime Tuesday, Davis' attorney Mathew Staver said the plaintiffs were not entitled to damages, because "they could have obtained licenses from any clerk."
"Kim Davis was entitled to a religious accommodation like the one she received from Gov. Matt Bevin and a unanimous legislature that passed a law accommodating all clerks," continued Staver. "This case is destined for the U.S. Supreme Court where we will seek religious freedom for all and ask the Court to overrule the wrongly decided case of Obergefell v. Hodges."
Attorneys for the plaintiffs did not immediately respond to request for comment.
Editor's Note: This piece was updated to include comment from counsel.
The piece was also updated to reflect that Kim Davis was jailed for six days. An earlier version noted her jail time as being five days.
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