Remember when I said I thought the next most likely major judicial attack on queer rights would come in the form of an attempt to overturn same-sex marriage equality? Gentle Readers, I take absolutely no pleasure in telling you now that prediction was correct.
In his concurrence in Dobbs v. Jackson Women's Health Organization, the 2022 case that eliminated the federal constitutional right to abortion, Justice Clarence Thomas practically begged lower courts for a case he could use to overturn nearly all of the Supreme Court’s substantive due process landmarks, "including Griswold, Lawrence, and Obergefell." The so-called “error[s] established in those precedents” included the right to access and use contraception, the decriminalization of consensual same-sex intimacy, and the right for (abled) same-sex couples to have their marriages legally recognized in all 50 states.
After decades of struggle to achieve them, it’s understandably tempting to think political battles stay won and constitutional rights and protections remain settled law. The protestors all went home. The news media switched to obsessing over a certain fascist Oompa Loompa’s every oddly capitalized social media post. “Love is Love” went from a rallying cry to a cutesy, pinkwashed corporate marketing slogan. Time passed, and people who either weren’t around for or didn’t want to think about the Bad Old Days got complacent.
But given that same-sex marriage equality is still one of the most bitter modern political culture war losses for hardline Republicans, paired with the Supreme Court’s new 6-3 conservative supermajority, the question was never if Obergefell would be challenged, but by whom. Turns out, the answer is the same thrice-divorced, born-again hypocrite who pitched a holier-than-thou hissy fit about it nine years ago, and the “international litigation, education, and policy ministry” that treats her as useful puppet for their own bigoted purposes.
The Timeline from Then to Now
The best way I can think of to cut a clear narrative path through nine years of multiple-front legal wrangling and background political machinations is a chronological summary of events from then to now. We won’t stop at every single milepost, just the ones that best lay out where we started, how we got here, and where we’re most likely headed next. There’s plenty of sights to see along the way, so make a quick pit stop if you need to, grab a snack and your comfy pants, and buckle up.
2015
June 26: The United States Supreme Court ruled in Obergefell v. Hodges that, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, all states were required to license marriages between two people of the same sex, and to recognize same-sex marriages that were legally licensed and performed in other states. That same day, Kentucky Governor Steve Beshear (father of current Governor Andy Beshear) sent a letter to all County Clerks in the state, which read in part:
“As elected officials, each of us has taken an oath to uphold the Constitution of the United States and the Constitution of Kentucky. The Obergefell decision makes plain that the Constitution requires that Kentucky -- and all states -- must license and recognize the marriages of same-sex couples. Neither your oath nor the Supreme Court dictates what you must believe. But as elected officials, they do prescribe how we must act.”
June 27: Rowan County Clerk Kim Davis announced that her office would no longer issue marriage licenses to any applicant, regardless of sex. She believed that issuing licenses to same-sex couples implied an endorsement of same-sex marriage, which conflicted with her personal religious faith. After four marriages, three divorces, and two children born out of wedlock, Davis had embraced Apostolic Pentecostalism (which, by the way, forbids adultery and fornication as well as homosexuality) a few years before taking office. Davis claimed that both her faith and her refusal to comply with the Supreme Court’s Obergefell decision were protected under the First Amendment and Kentucky’s Religious Freedom Restoration Act.
Allegledly to avoid specifically discriminating against same-sex couples, Daviscompletely refused to perform a statutorily mandated function of her role as an elected official. Since Kentucky’s marriage licenses are only available from County Clerks’ offices, Rowan County residents were left to either travel to another county to obtain a license, or to indefinitely postpone their weddings.
July 2: Four Rowan County couples, two same-sex and two mixed-sex, sued Davis both as an individual and in her official capacity as County Clerk for unlawful conduct in refusing to issue marriages licenses. The Plaintiffs, represented by the American Civil Liberties Union (ACLU), claimed violations of their First and Fourteenth Amendment rights. Davis was represented by attorneys from Liberty Counsel, which has long been designated by the Southern Poverty Law Center as an anti-LGBTQ+ hate group. They filed a response and counter-suit on her behalf soon afterward.
July 10: Another same-sex couple, David Ermold and David Moore, filed a federal civil rights complaint against Davis. The suit alleged that by repeatedly denying them a marriage license, Davis had deprived Ermold and Moore of their fundamental right to marry under the Fourteenth Amendment. Because the Miller plaintiffs were already suing Davis for declaratory and injunctive relief, the Ermold suit sought only monetary damages against her.
July 21: Speaking at a press conference in Frankfort, Governor Beshear said that while he respected the religious beliefs of County Clerks who opposed same-sex marriage, those whose personal convictions would not allow them to fulfill their official duties as prescribed by law should resign.
August 12: U.S. District Court Judge David Bunning granted a preliminary injunction stating the four couples must be allowed to obtain marriage licenses in Rowan County, finding that Davis’s personal religious convictions had no bearing on a “purely legal task” and did not excuse her from performing official duties and upholding her oath of office. He also said the state was not restricting her faith or asking her to condone the unions. Davis disagreed. Kentucky’s marriage licenses included a statement granting authorization from the County Clerk to the officiant to perform the marriage ceremony, which Davis said she interpreted as an endorsement of same-sex marriage in conflict with her personal religious beliefs.
Not only did Davis refuse to issue same-sex marriage licenses herself, she also did not want her Deputy Clerks to do so because her name and official title were still listed on the license forms that she did not personally sign. Davis said she intended to continue enforcing her office’s “no marriage licenses” policy for the remaining three and a half years of her term as Rowan County Clerk. Her attorneys filed a request to stay the preliminary injunction while she appealed to the Supreme Court.
August 25: After having been denied a marriage license five separate times, James Yates and Will Smith also filed a federal civil rights suit against Davis nearly identical to the Ermold complaint. The Ermold and Yates cases remained pending while the courts addressed the Miller suit.
August 26: The 6th U.S. Circuit Court of Appeals denied Davis’s motion to stay the preliminary injunction in the Miller case, finding that “it cannot be defensibly argued that the holder of the Rowan County Clerk’ office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.” As to Davis’s First Amendment claims, the panel cited several cases which held that in instances where a public employee’s speech is made pursuant to their duties, “the relevant speaker [is] the government entity, not the individual”.
August 31: Justice Elena Kagan, assigned to receive 6th Circuit appeals, referred Davis’s emergency application to the full Supreme Court. The result was a unanimous one-line opinion denying Davis’s request without further comment. Governor Beshear again ordered all County Clerks within the state to comply with the decision and issue marriage licenses to same-sex couples.
September 1: Davis again denied marriage licenses to April Miller and Karen Roberts, and to David Moore and David Ermold. She told the gathered press that “to issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.” The ACLU immediately filed motions with the district court to hold Davis in contempt, and to clarify (by expanding the scope of the injunction) that Davis must issue marriage licenses to all eligible applicants, not just the four named couples in the Miller case.
September 3: Judge Bunning found Davis in civil contempt of court. Deciding that fines alone were insufficient to ensure her compliance, he ordered Davis jailed until she agreed to issue marriage licenses to all eligible applicants. Attorneys for the Plaintiffs asked the judge to consider releasing Davis if she agreed not to interfere with her Deputy Clerks issuing same-sex marriage licenses. Judge Bunning agreed to the compromise; Davis refused. Five of the six deputy clerks swore under oath to immediately begin issuing marriage licenses to all eligible couples. The sole holdout was Davis’s son, Nathan.
September 4: While Davis was incarcerated at the Carter County Detention Center, James Yates and William Smith became the first same-sex couple to receive a marriage license from Rowan County, issued and signed by Deputy Clerk Brian Mason. Plaintiffs April Miller and Karen Roberts also received their marriage license from another deputy clerk and were married in a home ceremony the following day. The marriage licenses issued by the deputy clerks were altered to remove Davis’s name and official title.
September 8: Judge Bunning released Davis from jail on the condition that she was not to interfere in any way with the issuance of marriage licenses by her Deputy Clerks. He also ordered the five Deputy Clerks that had been issuing same-sex marriage licenses in Davis’s absence to provide written reports to his office every two weeks to ensure all eligible applicants were being served without delay or incident.
Davis’s release was co-opted as political rally for Republican Kentucky gubernatorial candidate Matt Bevin, as well as Republican Presidential candidates Mike Huckabee and Ted Cruz, all of whom opposed same-sex marriage equality. Huckabee offered to serve any future jail sentence in Davis’s place as a protest against what he described as anti-religious tyranny. Cruz called Davis’s imprisonment an outrage. By contrast, Governor Beshear stood by his previous statement that County Clerks must comply with the Obergefell ruling, and said the oath of public office “doesn't say ‘I will uphold the parts of the Constitution that I agree with and won't with the parts I don't agree with.’”
September 10: State Attorney General Jack Conway announced he would not appoint a special prosecutor to investigate Davis for official misconduct. Before filing their federal civil rights suit, James Yates and Will Smith had originally brought an official misconduct complaint against Davis to the Rowan County Attorney, but the matter was referred to Conway due to a conflict of interest with the ongoing civil litigation. Conway said he was satisfied to let the matter play out in federal court and declined to investigate. He also denied that this decision was in any way influenced by his own gubernatorial campaign against Matt Bevin, who had made a series of political attacks against Conway for his role in Davis’s case.
Sidebar: For those wondering how Davis managed to keep her job through all this, the simple answer is: she refused to resign, and she couldn’t be fired. Because County Clerks are elected officials, they can only be removed from office by impeachment, which the state legislature refused to call a special session to consider.
September 14: Davis returned to work and immediately confiscated all Rowan County marriage license forms. She then made multiple additional alterations to both the body text and signature block. At one point, she also directed staff member Brian Mason to sign same-sex marriage licenses in his capacity as a Notary Public, rather than as a Deputy Clerk.
September 21: Citing concerns about the legal validity of the altered marriage licenses and how they were being issued, the ACLU of Kentucky filed a motion asking the District Court to ensure enforcement of Judge Bunning’s recent orders. Additionally, the motion asked for Davis’s alterations to be removed, and for corrected forms to be issued to all applicants who had received marriage licenses since September 14. Despite assurances from Attorney General Conway and other legal experts, Davis and her attorneys insisted that marriage licenses issued by Deputy Clerks without the County Clerk’s name and title were not legally valid. Judge Bunning issued an order asking Governor Beshear and Commissioner of the Kentucky Department for Libraries and Archives Wayne Onkst for their official assessment.
October 31: David Ermold and David Moore were married under the Bell Tower on the Morehead State University campus. The student newspaper, The Trail Blazer, covered the ceremony. “The Davids” had been in a committed relationship for 17 years prior to their wedding, and are still married today.
November 13: Governor Beshear and Commissioner Onkst responded to Judge Bunning’s request by stating that although marriage licenses without the County Clerk’s name and title were not fully consistent with state statutes, the alterations did not invalidate the licenses or any marriages that had been conducted with them.
December 22: Newly elected Governor Matt Bevin issued an executive order directing the removal of County Clerk names from marriage license forms and authorizing clerks to designate a third party, such as a Deputy Clerk or Notary Public, to sign as an “issuing official.” Governor Bevin said the form revisions were necessary “to ensure that the sincerely held religious beliefs of all Kentuckians are honored.” Liberty Counsel attorney Mat Staver called the decision “a great Christmas present for Kim Davis and for others like her,” and predicted that the move would help bring the legal cases against Davis to an end in her favor.
2016
April 13: Governor Bevin signed Senate Bill 216, which amended Kentucky statutes to remove County Clerks' names from the state’s marriage licenses, and created a single license form to be used by both same-sex or mixed-sex couples. (The Kentucky Senate originally wanted to create a separate form for same-sex couples; the House of Representatives refused.) Governor Bevin called the new law “common sense legislation” that accommodated everyone and allowed Clerks to “fully follow the law without being forced to compromise their religious liberty."
August 18: Judge Bunning dismissed the Miller, Ermold, and Yates cases. He stated that because Kentucky marriage licenses no longer required County Clerks’ signatures, and all eligible Rowan County applicants were now receiving their marriage licenses without incident, the cases were now moot. Davis’s attorneys were quick to declare the decision a victory. The ACLU of Kentucky’s Communications Director, Amber Duke, said, “the true victory is that all loving Kentucky couples can obtain marriage licenses without fear of discrimination.” The contempt of court charges that sent Davis to jail for five days were not vacated.
September 19: The Plaintiffs in the Miller case submitted a motion for an award of attorney’s fees and costs in the amount of $233,058.08. Their attorneys argued that Davis’s refusal to perform her official duty to issue marriage licenses had forced the four couples to sue in order to claim their fundamental civil right to marry, and that the direct benefit they received from the case’s resolution made them eligible to recoup their legal expenses.
2017
May 2: The 6th Circuit Court of Appeals reversed Judge Bunning’s District Court decision to dismiss the Ermold case. Because the Plaintiffs sought monetary damages for harms allegedly caused by Davis’s past refusal to issue them a marriage license, rather than an injunction to compel her to issue marriage licenses in the future, the Appeals Courts agreed that the passage of Kentucky Senate Bill 216 did not moot their claims. The case was then sent back to District Court.
July 21: Judge Bunning granted the Miller Plaintiffs’ motion for attorney’s fees and costs in the full amount requested. Since Davis was acting in her official role as an elected agent of the state when she refused to issue marriage licenses (a point Davis’s own attorneys had repeatedly argued in other pleadings), Judge Bunning ruled that the Commonwealth of Kentucky was fully responsible for paying those fees.
September 15: Given the appellate court reversal and remand in Ermold, the Yates Plaintiffs filed a motion for reconsideration with the District Court. The Yates Plaintiffs had sued Davis for monetary damages in both her official and personal capacities, as a way of ensuring her liability for actions taken under color of state law. Davis’s attorneys responded with a motion to dismiss the case by claiming that Davis was immune from claims for monetary damages. Judge Bunning’s Memorandum Opinion and Order dismissed the Plaintiffs’ official capacity claim but allowed the personal capacity claim to continue. He also dismissed Rowan County as a defendant to the Yates suit.
2018
March - August: Do y’all remember the old Looney Tunes episodes where Bugs Bunny and Daffy Duck would argue back and forth about whether it was rabbit season vs. duck season while debating the technical limitations of Elmer Fudd’s hunting license? That’s a fairly apt summary of the status of the Miller case in the 6th Circuit Court of Appeals during the spring and summer of 2018. All sides, Rowan County and the Commonwealth of Kentucky included, were attempting to drown each other in 339 pages of legalese squabbling. (Yes, it was exactly as tedious to read as it sounds. No, I’m not going to rehash it in any further detail here. You’re welcome.)
November 6: Despite changing her political party affiliation from Democrat to Republican, Davis lost her Rowan County Clerk re-election bid. Elwood Caudill, Jr., a fourth-generation Rowan County resident, defeated Davis by a margin of 644 votes. He became the first person who was not a member of Davis’s immediate family to serve as County Clerk in more than 40 years, and still holds the office today.
2019
August 23: The 6th Circuit Court of Appeals issued a joint opinion for the Ermold and Yates cases. Judge Richard Allen Griffin and Senior Judge Helene N. White concurred in finding that:
Davis, in her official capacity, acted on behalf of the Commonwealth of Kentucky, not Rowan County.
Because she was acting on Kentucky’s behalf, Davis was protected by the doctrine of sovereign immunity (which applies only to federal and state governments).
The Plaintiffs’ right to marry was clearly established by the Fourteenth Amendment’s Equal Protection and Due Process Clauses and guaranteed to same-sex couples through the Supreme Court’s Obergefell ruling at the time Davis acted to deny their marriage licenses.
The Fourteenth Amendment requires a State to license a marriage between two otherwise eligible people of the same sex.
Kentucky state law required Davis to issue marriage licenses to all eligible couples.
Davis’s decision to refuse to issue marriage licenses to any applicants, regardless of sex, violated the Fourteenth Amendment’s Due Process Clause.
Kentucky’s Religious Freedom Restoration Act did not allow Davis to self-accommodateher religious objections to same-sex marriage in the way that she did.
Both the Ermold and Yates Plaintiffs made adequately plausible claims that Davis, as an individual, violated their constitutional right to marry.
Davis was, therefore, not protected by the doctrine of qualified immunity and could be sued in her individual capacity for monetary damages.
Judge John K. Bush concurred with the Majority’s overall judgment and with their treatment of Davis’s sovereign immunity claim. He concurred in part with denying Davis qualified immunity protection but felt the Court should have applied a strict scrutiny analysis to determine whether her actions were unconstitutional (though he did agree that they were). Judge Bush expressed no opinion on whether Davis was entitled to a religious exemption or accommodation because, in his view, “she never properly invoked the protections of the statute.”
2020
January-October: On January 22, Davis’s legal team filed a whopping 221-page combined petition appealing the Ermold and Yates cases to the U.S. Supreme Court. After a 30-day response deadline extension to accommodate new co-counsel and several months of conference delays due to the COVID-19 pandemic, SCOTUS was finally able to review the petition, response briefs, and replies in late September. On October 5, SCOTUS denied Davis’s petition. Justice Clarence Thomas agreed with the denial, stating the arguments were poorly presented, yet couldn’t resist writing a brief dissent just so he could once again put open expressions of societal homophobia into dismissive scare quotes and gripe about Obergefell’s “ruinous consequences for religious liberty.” Justice Samuel Alito joined in Thomas’s dissent, because of course he did.
2021
On these dates in this saga’s history, nothing happened. Feel free to be grateful or apprehensive. A mix of both is also appropriate and entirely understandable.
2022
March 18: Despite being litigated for more than six years and appealed all the way to the Supreme Court, the Ermold and Yates cases were back in District Court, complete with a fresh, steaming pile of dueling motions. Judge Bunning made the facts (and his exasperation with having to spell them out again) abundantly clear throughout his Memorandum Opinion and Order, but perhaps most especially in these selected quotes:
“It is readily apparent that Obergefell recognizes Plaintiffs' Fourteenth Amendment right to marry. It is also readily apparent that Davis made a conscious decision to violate Plaintiffs' right.”
“Defendant Davis violated Plaintiffs' constitutional right to marry by refusing to issue them marriage licenses, either personally or through the policy she established for the Rowan County Clerk's office. In total, the Ermold Plaintiffs were refused a marriage license three times, and the Yates Plaintiffs were refused a license five times. These facts were solicited from Defendant Davis's own testimony." [emphasis his]
“Ultimately, this Court's determination is simple - Davis cannot use her own constitutional rights as a shield to violate the constitutional rights of others while performing her duties as an elected official.”
“Again, this Court finds that Davis is not entitled to qualified immunity.”
2023
September 13: The Ermold and Yates cases were tried simultaneously in federal court in front of separate juries on the matter of monetary damages. After a two-day trial, the Ermold jury awarded a total of $100,000 to David Ermold and David Moore. The Yates jury, however, decided James Yates and Will Smith were not entitled to any compensation, despite having been denied a marriage license even more times than the Ermold Plaintiffs. No explanation was given for the difference in verdicts.
December 28: In addition to the jury award for monetary damages, Judge Bunning ordered Davis to pay $260,084.70 in combined attorneys' fees and expenses, the full amount requested for both the Ermold and Yates cases. Davis’s legal team made vigorous objections to the attorneys’ fee amounts and to every single aspect of how they were calculated. Judge Bunning held firm, finding that the appointment of specialist legal counsel to assist with the Supreme Court appeal response on behalf of both sets of Plaintiffs, the hours expended, and the rates charged to all be reasonable.
2024
July 23: Davis, of course, can’t stand the thought that her right to exercise her personal religious beliefs doesn’t extend to using the power of elected office to inflict them others, and she certainly doesn’t want to pay a dime of her book proceeds to those icky queers. Despite her claims that she’s “never once been hateful,” her lawyers’ latest missile epistle to the 6th Circuit Court of Appeals certainly didn’t hold back on her behalf. After scoffing at Ermold and Moore’s emotional distress as a “perceived injury” incompetently defended by “bare subjective testimony of hurt feelings,” the appeal brief dismisses same-sex marriage licenses as having no greater importance than hunting and fishing permits. If Davis can opt out of issuing those for conscience-based reasons, then surely her religious freedom deserves greater accommodation than a gay couple’s constitutional rights. After all, if they really wanted a marriage license that badly, why didn’t they just travel to another county to get it (perhaps by way of seats at the back of the bus)?
For their part, Liberty Counsel’s aims with this appeal are crystal clear: they want to use the 6th Circuit as their second chance at getting Davis’s case before the Supreme Court, and they are willing to use any and every available means to make that happen. Their hope is that by parroting enough of Justice Thomas’s own arguments against Obergefell back to him like good little sycophants, he’ll reward them by convincing a majority of the Court to overturn yet another pillar of substantive due process protections in the name of “religious liberty.” The resulting boost in fundraising clout with Liberty Counsel’s radical right wing donor base alone would surely make putting up with a decade of Davis’s “Poor Me” act worthwhile.
Predictions
The 6th Circuit has no choice but to hear Davis’s latest appeal, but they will almost certainly deny most, if not all of it. The only thing new about her attorneys’ arguments, other than the level of open vindictiveness, is how transparent they’re being about their bigger aims. Liberty Counsel included “Obergefell should be overturned for the same reasons articulated by the Court in Dobbs” as the final item in the Summary of Argument portion of their appeal brief — to a Circuit Court with no jurisdictional authority to make that happen.
The same kind of ready-fire-aim sloppiness, both in her own actions and in her attorneys’ oral and written arguments, has cost Davis all along. The best-case scenario is that it does so once again, for a potentially final time. If the 6th Circuit denies Davis’s latest appeal, AND SCOTUS refuses to take up her petition, her goose is cooked for good. She pays her monetary damages judgment, and everybody goes back home. If SCOTUS does grant Davis a hearing, we Alphabet Mafia folks will have a lot more to worry about. I still don’t think Liberty Counsel has the skill to bring down Obergefell, but that doesn’t mean someone else can’t, or that the homophobic bigots of the world won’t keep trying.
For now, here's hoping the 6th Circuit is just as tired of Kim Davis’s schtick as Judge Bunning was, and that SCOTUS doesn’t decide to use her as a distraction from the ethical disarray happening in their own glass house.
