Kim Davis is still standing up for Biblical marriage

Kim Davis, the former county clerk in Kentucky who in 2015 refused to sign a marriage license for two same-sex couples, is appealing again—this time after jury verdicts last week in civil lawsuits brought by the couples.

Two juries in parallel proceedings in an Ashland, Ky., federal courthouse reached different conclusions on how much Davis should pay the two couples for mental anguish they said was caused by Davis’ refusal to sign their marriage licenses. On Wednesday, a jury declined to award any damages to one couple, James Yates and Will Smith. In contrast, a jury awarded $100,000 to the other couple, giving $50,000 each to David Ermold and David Moore.

Orlando-based Liberty Counsel, which represented Davis, announced Thursday that it would appeal both verdicts. Initially, attorneys will ask U.S. District Court Judge David Bunning to enter a judgment notwithstanding the verdict, a remedy where losing parties contend a jury verdict is not supported by any evidence.

Yet it may still be a long road to vindication, if any, for Davis. Mat Staver, one of the Liberty Counsel attorneys representing Davis, said in a statement that the jury verdict “has paved the way for this case to go to the U.S. Supreme Court.” In addition to challenges to jury selection and lack of proper evidence, Liberty Counsel contends Davis was entitled to a religious accommodation for her conviction that marriage is only between one man and one woman.

Davis claims the First Amendment entitles her to the accommodation, one now written into Kentucky law. When Republican Gov. Matt Bevin took office in December 2015, he granted religious accommodation to all clerks by executive order. In April 2016, the legislature codified that in law, unanimously granting religious and conscience exemptions to all clerks from issuing marriage licenses that conflict with their religious beliefs.

Davis’ attorneys also seek to challenge the very basis for damages: the legitimacy of the Supreme Court’s 2015 ruling in Obergefell v. Hodges upholding the constitutionality of same-sex marriage. When the U.S. Supreme Court refused in 2020 to hear a prior appeal of Davis’ case, Justice Clarence Thomas gave conservatives hope for a reversal of the Obergefell ruling.

In the opinion joined by Justice Samuel Alito, Thomas wrote that what happened to Davis was a “stark reminder of the consequences” of the Supreme Court’s legalization of gay marriage. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix,” Thomas warned.

Davis’ initial refusal to sign marriage licenses resulted in a contempt of court citation and five days in jail before a judge released her, allowing deputy clerks to issue the licenses, provided she did not interfere. A federal appeals court ultimately said the new law allowing for accommodation made the case moot and returned it to the trial court for a ruling on who would pay costs of the litigation. In July 2017, the court ordered the state to pay $222,695 in legal fees and costs but did not settle the issue of Davis’ personal liability.

That came last year, when the judge ruled that Davis had violated both couples’ constitutional rights under the 14th Amendment and the Supreme Court’s decision to legalize gay marriage in Obergefell. As a result, juries hearing the cases last week could not revisit the issue of liability but only determine what damages each couple were due.

Staver said both cases would be appealed on the issue of liability, while the damages awarded in the case involving Ermold and Moore would also be appealed. Rene Heinrich, an attorney representing Yates and Smith, told The Wall Street Journal that her clients “were stunned and even more dejected” by the jury’s decision not to award damages. She is considering next steps, which could also include appeal.