Kentucky Clerk Not Off the Hook Yet, Sixth Circuit Rules

CINCINNATI (CN) – A gay couple can still sue Kentucky court clerk Kim Davis for damages, the Sixth Circuit ruled Tuesday, even after the state mandated the issuance of marriage licenses to same-sex couples following her widely publicized refusal to do so.

Davis, clerk of Rowan County, Ky., spent five days in jail in 2015 after she was held in contempt of court for refusing to issue marriage licenses for same-sex couples, following the U.S. Supreme Court’s landmark ruling legalizing gay marriage. She claimed her beliefs as an Apostolic Christian prevented her from sanctioning the unions.

The case of David Ermold and David Moore had previously been ruled moot by U.S. District Judge David L. Bunning, but the Cincinnati-based appeals court panel overturned his decision Tuesday.

Sixth Circuit Judge Karen Nelson Moore authored the opinion of the three-judge panel, and said that because the couple only sought damages, their case was not mooted by the state’s passage of Senate Bill 216, which removed county clerks’ names from marriage licenses.

“We conclude that the district court’s characterization of this case as simply contesting the ‘no marriage licenses’ policy is inaccurate because Ermold and Moore did not seek an injunction – they sought only damages,” Moore wrote. “This action is not a general challenge to Davis’s policy, but rather seeks damages for a particularized harm allegedly suffered by a specific set of plaintiffs.”

Davis had argued that the couple had no cause of action after SB 216 was signed into law, and cited the dismissal of several other class-action suits against her, but Judge Moore disagreed.

“Claims for damages are largely able to avoid mootness challenges,” she wrote. “Ermold and Moore contend that Governor [Matt] Bevin’s signing of Senate Bill 216 did not moot their case because they sought damages for harms allegedly caused by Davis’s refusal to issue them a marriage license. They argue that Senate Bill 216, ‘is irrelevant to plaintiffs’ entitlement to damages for the denial of their marriage license one year prior.’”

Moore concluded, “The record does not support an argument that appellants’ damages claims are insubstantial or otherwise foreclosed.”

The panel, which also included Sixth Circuit Judges Eugene Siler Jr. and Richard Allen Griffin, remanded the case to Ashland, Ky., federal court.

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