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The Kentucky clerk who denied same sex couples marriage licenses can be sued

by | Sep 25, 2017 | Divorce, Domestic Partners, Firm News, Same Sex Marriage

ASHLAND, Ky. (CN) – Two lawsuits against Kentucky county clerk Kim Davis – who refused to marry same-sex couples after the historic U.S. Supreme Court ruling legalizing gay marriage – will proceed, but only against Davis in her individual capacity, a federal judge ruled.  That means that the federal that passed will allow same sex couples the same rights concerning divorce as other not same sex couples.

Davis, clerk of Rowan County, Ky., spent five days in jail in 2015 after she was held in contempt of court for refusing to issue marriage licenses for same-sex couples, following the Supreme Court’s landmark decision in Obergefell v. Hodges. She claimed her beliefs as an Apostolic Christian prevented her from sanctioning the unions.

In a pair of 21-page rulings issued Friday, U.S. District Court Judge David L. Bunning disagreed with Davis’ assertion that her policy created a “mere inconvenience” to gay couples – whom she said could have traveled to another county to obtain licenses – and refused to dismiss personal-capacity claims against her.

James Yates and Will Smith, as well as David Ermold and David Moore, filed separate lawsuits in Eastern Kentucky federal court for damages after they were denied marriage licenses by Davis.

Although Judge Bunning dismissed the constitutional claims against Davis in her official capacity as Rowan County clerk, citing the “insurmountable hurdle” of sovereign immunity, the couples will be allowed to seek damages against Davis as an individual after Bunning denied her motion for qualified immunity.

In his opinion, the judge cited the 2014 Supreme Court case Zablocki v. Redhail, which determined a Wisconsin statute that required noncustodial parents to obtain a court order before they could get married was unconstitutional.

“Like the plaintiffs in Zablocki,” he wrote, “Some Rowan County residents would ‘never be able to’ receive a marriage license, ‘because they either lack[ed] the financial [or practical] means’ to travel to a neighboring county. … ‘And even those who [could have been] persuaded’ to travel to a neighboring county to obtain their marriage license, ‘suffer[ed] a serious intrusion into their freedom of choice in an area which’ the Supreme Court has held ‘such freedom to be fundamental.’”

Davis argued that, despite the Supreme Court’s 2015 decision in Obergefell legalizing same-sex marriage nationwide, the couples’ right to marry was not clearly established when she denied them marriage licenses.

Judge Bunning disagreed.

Obergefell answered one question – whether the fundamental right to marry extended to same-sex couples. The answer was yes, and that clearly established plaintiffs’ constitutional rights,” he wrote.

The judge concluded that “defendant had fair warning on July 6, 2015 – when she denied plaintiffs’ request for a marriage license – that her conduct was unconstitutional.”

“Obergefell established on June 26, 2015, that same-sex couples, like the plaintiffs, had the right to exercise the fundamental right to marry,” the ruling says. “Obergefell further explained that States could no longer deny that right to them. Therefore, the ‘contours of the right’ were ‘sufficiently clear’ such that ‘a reasonable official would understand that’ adopting a ‘no marriage licenses’ policy would violate that right.”

The case of Ermold and Moore had previously been ruled moot by Judge Bunning, but a Sixth Circuit panel overturned that decision in May.