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An appeals panel ruled Thursday that a Kentucky county official is not protected from being sued personally for refusing to issue marriage licenses to same-sex couples.
The ruling also affirmed that former Rowan County Clerk Kim Davis violated the Constitutional rights of the couples to get married.
A three-judge panel of the U.S. 6th Circuit Court of Appeals handed down the ruling Thursday.
Davis could ask the U.S. Supreme Court to overturn the ruling.
However, Lexington attorney Michael J. Gartland, who represents a couple suing Davis, said he believed U.S. District Judge David L. Bunning will soon schedule a trial in the case.
Gartland said the issues in the trial would be how much Davis should pay the two couples for refusing to issue them marriage licenses, called compensatory damages, and whether Bunning will allow them to seek an award to punish Davis, called punitive damages.
Gartland said his clients, David Ermold and David Moore, were pleased by the appeals court ruling.
“She had no excuse for doing what she did,” Gartland said of Davis.
One of Davis’ attorneys, Mathew D. Staver of Liberty Counsel, said he will ask the entire appeals court to hear her case.
Absent that, Staver said the case will proceed to trial.
The ruling is the latest development in a case that stretches back years and has received national attention.
After the U.S. Supreme Court legalized same-sex marriage in the summer of 2015, Davis had her office stop issuing any marriage licenses so that she wouldn’t have to issue a license to a gay couple, according to court records.
Davis said she was an evangelical Christian who believed marriage is only proper between one man and one woman. She said issuing a license to a gay couple would violate her beliefs and rights.
One couple, James Yates and Will Smith, was turned away five times when they sought a license. Davis denied a license to Ermold and Moore three times.
On their last try, Davis said she could not issue them a license “under God’s authority,” according to court records.
A deputy clerk ultimately issued licenses to the couples while Davis was in jail for several days for contempt of court. That was for violating Bunning’s order that she issue licenses as called for under the Supreme Court decision.
The couples sued Davis, saying that her actions humiliated them and caused them mental anguish and emotional distress.
Bunning agreed with Davis that she was protected by sovereign immunity in her official capacity as clerk, but not by qualified immunity personally, according to court records.
That’s the issue Davis appealed.
The appeals panel upheld Bunning’s ruling that Davis is not shielded by qualified immunity.
That is a doctrine that shields public officials from personal liability unless they “violate clearly established statutory or constitutional rights of which a reasonable person would have known,” the appeals panel said.
The appeals decision said the right for same-sex couples to marry was clear, and that Davis understood it.
Then-Gov. Steve Beshear sent a letter to county clerks the same day as the Supreme Court ruling saying the state would recognize same-sex marriages, and Davis talked to the county attorney, who told her she had to issue licenses.
She refused after that.
The appeals court had already ruled once that Davis was not protected by qualified immunity.
Her second appeal on that issue was frivolous, Gartland said Friday.
Davis asked the appeals judges to consider that she had a religious freedom right under the First Amendment to refuse to issue the licenses, but the panel said the issue before it did not include “whether Davis had a justification for taking the action (or, as here, inaction) that violated plaintiffs’ constitutional rights.”
Staver said the defenses Davis’ attorneys will raise during the trial on damages will include that issuing same-sex marriage licenses would have violated her religious freedom.
“We have confidence that we will ultimately succeed on the religious freedom defense,” Staver said. “This case is far from over.”
Gartland, however, noted that Bunning rejected Davis’ argument about religious freedom in his decision earlier this year.
“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,” Bunning said.