Kim Davis’ legal counsel moves to make her appeal a springboard for overturning marriage rights

Kim Davis, then the Rowan county clerk, waved to supporters at a rally outside the Carter County Detention Center on Sept. 8, 2015 in Grayson. Davis was ordered to jail for contempt of court after refusing a federal court order to issue marriage licenses to same-sex couples. (Photo by Ty Wright/Getty Images)

A conservative legal group has filed a brief on behalf of a former Kentucky county clerk that it says could lead to the U.S. Supreme Court overturning the right of same-sex couples to marry.

Kim Davis, then the Rowan County clerk, made national headlines in 2015 for refusing to issue marriage licenses to several same-sex couples based on her religious beliefs.

Liberty Counsel, based in Orlando, Florida, and labeled a hate group by the Southern Poverty Law Center, filed the brief Monday with the 6th U.S. Circuit Court of Appeals in Cincinnati, according to a news release from Liberty Counsel and first reported by Jezebel.

Liberty Counsel founder and Chairman Mat Staver said in a Tuesday press release that “Kim Davis deserves justice in this case since she was entitled to a religious accommodation from issuing marriage licenses under her name and authority.”

“This case has the potential to overturn Obergefell v. Hodges and extend the same religious freedom protections beyond Kentucky to the entire nation,” Staver said.

U.S. District Judge David Bunning in 2015 ordered Davis to jail for five days for contempt for refusing to comply with a court order. Bunning earlier this year ordered Davis to pay $260,104 in fees and expenses to attorneys who represented one of the couples she refused a marriage license. Bunning had earlier ordered Davis to pay the couple, David Ermold and David Moore, $100,000 in damages for violating their constitutional rights. Liberty Counsel is appealing Bunning’s decisions.

Davis lost her bid for reelection as Rowan County clerk in 2018.

Chris Hartman, the director of Kentucky’s Fairness Campaign, told the Lantern Tuesday that the latest legal move on Davis’ behalf is “sad and desperate” but also within the realm of possibility under the current U.S. Supreme Court.

“The threat of anti-LGBTQ hate groups … is real, however, and it comes as no surprise that they are seeking to overturn LGBTQ marriage in America. With an arch-conservative Supreme Court that’s already upended half a century of abortion rights, anything is unfortunately possible.”

Court documents filed by Liberty Counsel point specifically to the Supreme Court’s 2022 decision to overturn the constitutional right to abortion, saying the court should overturn Obergefell for the same reasons. In the abortion case, U.S. Supreme Court Justice Clarence Thomas wrote in his concurring opinion that the court could use the same rationale to overturn earlier decisions on same-sex marriage and access to contraception.

“Obergefell was wrong when it was decided and it is wrong today because it was based entirely on the legal fiction of substantive due process, which lacks any basis in the Constitution,” say court documents filed by Liberty Counsel.

Liberty Counsel has not yet responded to a Lantern inquiry seeking further comment.

Ermold and Moore were married Oct. 31, 2015 in an outdoor ceremony on the Morehead State University campus, which the student newspaper, The Trail Blazer, covered.

Read Liberty Counsel’s brief

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