(The Center Square) – Nine years after the U.S. Supreme Court legalized same-sex marriage nationwide, attorneys for a former Kentucky county clerk who went to jail for failing to issue licenses said their client’s case should lead to the landmark decision being overturned.
“The time has come for a course correction,” lawyers from Liberty Counsel wrote in a 73-page brief filed this week before the U.S. Sixth Circuit Court of Appeals on behalf of their client, former Rowan County Clerk Kim Davis.
Davis and her legal team want to strike down a lower court ruling ordering her to pay more than $100,000 to the plaintiffs who sought a marriage license from her and more than $260,000 to the couple’s attorneys.
Davis was in office in 2015 and refused to issue marriage licenses in wake of the Supreme Court’s decision in Obergefell v. Hodges. The then-elected official whose signature was required to make the license official refused to provide it, saying same-sex marriage went against her religious beliefs.
She continued to withhold her signature even after she lost court cases, leading a federal judge to hold her in contempt of court.
That case brought international attention and hundreds of demonstrators on both sides of the issue to Morehead, a small college town in Eastern Kentucky, and the surrounding area. Republican presidential candidates Mike Huckabee and Ted Cruz came to the region to visit Davis while she was jailed.
Davis’ office eventually agreed to issue licenses. In December 2015, shortly after taking office, then-Kentucky Gov. Matt Bevin removed the county clerk’s signature line from the marriage license through an executive order. Even after the license issue was settled, the case against Davis continued, and she was ultimately found responsible for damages.
Lawyers for Davis argue another landmark Supreme Court ruling, the Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade and gave states the right to determine the legality of abortion, paved the way for Obergefell to be overturned. While the majority opinion in the 2022 case focused solely on abortion rights, Associate Justice Clarence Thomas issued a separate opinion saying Dobbs could lead to challenges against same-sex marriage and similar matters.
A Louisville lawyer who represented other couples who sued Davis over her denial of licenses and was also part of the legal team in the Obergefell case told The Center Square on Wednesday it "seems highly unlikely" the Supreme Court would grant a review of this appeal.
"In Kim Davis’ case, the evidence was undeniable that she violated the plaintiffs’ civil rights by denying them marriage licenses," said Joe Dunman, now an assistant professor at the University of Louisville Brandeis School of Law. "To win on appeal, she’d have to convince the court to retroactively negate Obergefell and say that it was not really good law when she refused to grant licenses."
In a footnote, the lawyers say Davis understands the Sixth Circuit cannot supplant existing Supreme Court precedent, but she offers the argument so she can “preserve it” should the case continue.
Legalizing same-sex marriage “has produced disastrous results” for Davis and others with similar beliefs, the filing stated. Her lawyers claim that, like abortion, “same-sex marriage is neither carefully described nor deeply rooted in the nation’s history.”
Monday was the deadline for Davis’ team to file their brief. Lawyers for David Ermold and David Moore have until Aug. 21 to submit their response.
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