Former Kentucky Clerk Back in Spotlight at Sixth Circuit

CINCINNATI (CN) – Former Kentucky county clerk Kim Davis argued before a Sixth Circuit panel Thursday to dismiss claims brought by a pair of gay couples to whom she refused to issue marriage licenses after the historic U.S. Supreme Court ruling legalizing same-sex marriage.

In this Sept. 1, 2015, file photo, Rowan County Clerk Kim Davis, right, talks with David Moore following her office’s refusal to issue same-sex marriage licenses. (AP Photo/Timothy D. Easley, File)

Davis infamously refused to issue marriage licenses to gay couples in 2015 because of her beliefs as an Apostolic Christian. The former clerk of Rowan County was jailed for five days as a result.

A federal judge dismissed civil rights claims seeking damages against Davis in her professional capacity, but allowed claims against her in an individual capacity to proceed.

Davis argued at the district court that the gay couples’ right to marry was not clearly established at the time she denied them licenses, but U.S. District Judge David L. Bunning disagreed.

Judge Bunning cited the landmark Supreme Court decision in Obergefell v. Hodges, and told Davis she had “fair warning … that her conduct was unconstitutional.”

Thursday’s arguments in the Sixth Circuit focused on both sovereign and qualified immunity, and Davis’ attorney Roger Gannam of Christian group Liberty Counsel argued that Judge Bunning properly determined she was a state actor and granted her sovereign immunity for the official capacity claims.

“Davis upheld and enforced state policy,” Gannam told the panel, adding that “she faced a difficult situation” when determining whether to issue marriage licenses or enforce the state’s religious freedom laws under the Religious Freedom Restoration Act, or RFRA.

RFRA laws say that a person’s religious liberty can only be limited by the “least restrictive means of furthering a compelling government interest.”

U.S. Circuit Judge Helene White asked about a mandate issued by then-Governor Steve Beshear immediately after the Supreme Court’s ruling in Obergefell that required Kentucky clerk’s offices to issue licenses to gay couples.

The attorney admitted the order had been issued, but that the “availability of licenses everywhere else in the state” compelled his client to deny the licenses in Rowan County based on her religious beliefs.

The argument turned to Judge Bunning’s denial of qualified immunity to Davis for the individual capacity claims.

Gannam said his client “chose to treat all couples the same” by denying all marriage licenses in Rowan County, and told the panel there is “no constitutional right to get a marriage license in your own county.”

“The fundamental right to marry was not violated,” the attorney said.

Attorney Michael Gartland argued on behalf of the gay couples, and disputed the lower court’s finding that Davis was a state actor when she denied his clients marriage licenses.

“Kentucky,” Gartland said, “didn’t enact this policy… She didn’t believe gays and lesbians were entitled to marriage licenses.”

U.S. Circuit Judge Richard Allen Griffin challenged the attorney, and said that because state law controls marriage licenses, Davis acted on behalf of the state, even when she violated her duties as a county clerk.

Judges Griffin and White repeatedly referred to Davis as a “rogue” state actor, but maintained that her refusal to comply with state law did not render her a county actor.

Gartland argued that Davis implemented a new, countywide policy and was therefore a county actor when she denied his clients their licenses.

The attorney went on to say that the RFRA gave Davis the authority to alter the marriage license form and remove her name from the document to avoid compromising her religious beliefs.

While such a license would not have fully complied with state law, Gartland told the panel that a “merely defective form does not affect the validity of a marriage” in Kentucky.

On rebuttal, Gannam disputed this point, and claimed that the removal of Davis’ authorization was not a “clerical error” that would have kept the licenses valid.

The Cincinnati-based appeals court also grappled with the issue of whether Kentucky and its taxpayers are responsible for the attorney fees incurred by the couples who filed suit against Davis.

A federal judge ruled in October 2017 that Davis acted “on behalf of the Commonwealth” when she refused to issue marriage licenses to gay couples, a decision appealed and argued by numerous parties on Thursday.

Gannam argued on behalf of the Rowan County clerk’s office that the award of attorney fees was improper because the couples sought “an open-ended right” for all future marriage licenses issued in the county.

“The license is not the end of the story,” Gannam told the panel.

He cited the 2010 Sixth Circuit case McQueary v. Conway, in which the plaintiff was granted a preliminary injunction to protest at military funerals.

The injunction was later repealed when Kentucky changed its laws to allow for such protests.

Gannam argued that under McQueary, a “preliminary injunction is typically not enough” to award attorney fees.

Attorney Gene Vance argued on behalf of Governor Matt Bevin, and said the county is liable for any attorney fees.

“[A] local actor made a conscious policy decision,” Vance told the panel.

Attorney Mary Ann Stewart argued on behalf of Rowan County, uring the panel to affirm the lower court’s decision.

“Marriage is essentially and absolutely a state function,” she said.

Stewart pointed to the mandate issued by Beshear after the Obergefell decision, as well as a subsequent change in marriage license forms by Bevin as evidence that the state controls the issuance of marriage licenses and is liable for the attorney fees.

She concluded that there is no body of law that says Davis’ actions “convert it to a county action.”

U.S. Circuit Judge John Bush also sat on the panel. No timetable has been set for the court’s decision.

Davis lost her bid for re-election in November and left office on Jan. 7.

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