Couple denied marriage license by Kim Davis says court was right to order her to pay them

A same-sex couple denied a marriage license by former Rowan County Clerk Kim Davis argue in court documents that a lower court was right to hold her responsible for violating their constitutional rights.

The brief filed Friday is in response to Davis’ appeal in a case in which she was ordered to pay $100,000 to David Ermold and David Moore, two of the men to whom she would not issue a marriage license in 2015.

The jury verdict against her meant that Davis was also on the hook for the men’s attorney fees in the case, which totaled more than $260,000.

Davis has appealed the case to the U.S. 6th Circuit Court of Appeals in Cincinnati.

Attorneys for Ermold and Moore argue in a brief filed Friday that the jury’s award was reasonable “based on extensive testimony from both Plaintiffs documenting the profound pain they experienced when Davis denied their right to marry and belittled and demeaned their relationship. Indeed, Davis herself testified that she observed the distress she caused Plaintiffs, confirming their testimony.”

An attorney for the men declined to comment Friday night.

“In Obergefell, the Supreme Court held that same-sex couples enjoy ‘the fundamental right to marry’ under the Fourteenth Amendment and ‘may not be deprived of that right’ by the government,” the couple’s attorneys wrote. “In accordance with Obergefell’s holding, dozens of states across the country that had previously banned same-sex marriage, including Kentucky, began to license such unions.

“But ‘the message apparently didn’t get through’ to Defendant Kim Davis. ... Exercising her official authority as the Clerk of Rowan County, Kentucky, Davis did exactly what the Supreme Court said she could not: She ‘denied’ Plaintiffs their ‘fundamental right to marry.’”

Ermold and Moore, who have been together more than 25 years, were rejected three times when they went to Davis’ office to apply for a marriage license in 2015, they state in the brief filed Friday. They ultimately were able to get a license from a deputy clerk while Davis was jailed for violating a court’s orders.

Davis, who lost her bid for re-election in 2018, is an evangelical Christian who claimed it would violate her religious beliefs and rights to issue the men a marriage license bearing her name. The Kentucky legislature later changed the marriage license form so that the clerk’s name is not on it.

Davis’ attorneys argued in a brief filed in July that the lower court should not have even allowed the jury to get Ermold and Moore’s case, because they say the men didn’t provide enough evidence that they were actually harmed by Davis failing to give them the license.

They also argue the lower court was wrong when it determined that “Davis was not entitled to a reasonable accommodation for her sincerely held religious beliefs under the First Amendment and Kentucky Religious Freedom Restoration Act.”

But attorneys for Ermold and Moore state in Friday’s filing, “Davis’s religious accommodation claim has no place in this dispute between her and Plaintiffs, who are private citizens. It is the people who have constitutional rights against the government, not the other way around.

“Of course, Davis is entitled to her religious belief that marriage must be between one man and one woman. But she was not entitled to turn her personal religious belief into the official policy of the Rowan County Clerk’s Office, when that policy violated the constitutional rights of the County’s people. To the extent she had a claim for an accommodation under the First Amendment or the Kentucky Religious Freedom Restoration Act, she needed to assert that claim against the Commonwealth of Kentucky, rather than taking matters into her own hands by acting on behalf of the State to deny Plaintiffs their right to marry.”

Davis’ attorneys also say the lower court “erred by finding that Obergefell created a clearly established constitutional right that superseded Davis’s preexisting fundamental, textual constitutional rights to religious exercise.”

But, attorneys for the plaintiffs say, “even Davis concedes this Court lacks authority to consider that request.”

Davis’ attorneys hope to get the case before the Supreme Court, where they say they will argue that the decision granting same-sex couples the right to marry should be overturned because, according to their brief, “the right to same-sex marriage is neither carefully described nor deeply rooted in the nation’s history.”