Kim Davis wants to overturn gay marriage ruling. Legal scholars weigh in on her chances

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Lawyers for former Rowan County Clerk Kim Davis this week appealed a ruling in her case that they hope will lead to an overturning of federal protections for same-sex couples to marry.

But legal scholars interviewed by the Herald-Leader say that’s unlikely.

It’s reasonable to see the precedent set in Obergefell v. Hodges — the landmark Supreme Court decision in 2015 that legalized same-sex marriage — as vulnerable given the current conservative makeup of high court, whose members overturned longstanding precedent in Roe v. Wade two years ago, they said.

However, Davis’ particular case, stemming from events that took place nearly a decade ago, and the method by which her attorneys at Liberty Counsel are going about it, is procedurally flawed, these experts said.

“This case is a loser case, and not because of the substance, but because procedurally, it is nonsense,” said JoAnne Sweeny, professor of law at the University of Louisville. “And it’s because they’re appealing a jury verdict for damages.”

Davis, an evangelical Christian, rose to international prominence nine years ago for refusing to issue marriage licenses to same-sex couples in her Eastern Kentucky county after gay marriage became legal under the court’s ruling.

Davis was staunch in her refusal to carry out the sworn duties of her public position — her office temporarily stopped issuing any marriage licenses so Davis’ name did not have to appear on licenses for gay couples — and she was briefly jailed for contempt. She was lauded by conservative Christian groups and leaders as a symbol of resistance against a federal law that they said infringed on religious freedom, a position her lawyers continue to take in the latest appeal.

Davis “was entitled to a reasonable accommodation for her sincere religious convictions under the First Amendment and Kentucky’s Religious Freedom Restoration Act,” her lawyers wrote in the 73-page brief filed Monday. “The government’s refusal to timely grant such an accommodation impermissibly infringed her religious exercise.”

In 2016, after a judge dismissed an initial spate of lawsuits against Davis, David Ermold and David Moore, a couple who were denied a marriage license by Davis’ office three times, sued the former clerk, who lost re-election in 2018.

A federal judge in 2022 found that Davis had indeed violated the couple’s constitutional right to marry.

“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,” U.S. District Judge David L. Bunning wrote at the time.

Ermold and Moore then asked for $300,000 in damages. In September 2023, after a three-day jury trial in federal court, Davis was ordered to pay $100,000 in damages, plus $260,104 in attorneys fees and expenses.

Davis’ attorneys asked Bunning to set aside this jury verdict, but in April he refused. That is the case against which her attorneys with Liberty Counsel filed their appeal to the Sixth Circuit this week.

In other words, the latest case they’re appealing wasn’t about whether or not Davis was liable to pay damages, or even re-treading the substance of the initial case against her; it was to figure out how much she should pay.

For this reason, the appeal is too “procedurally wrong to be a real danger to Obergefell,” Sweeny said.

Patti Minter, a former Democratic state lawmaker and professor of legal history at Western Kentucky University, agrees.

“This particular dog isn’t going to hunt for Liberty Counsel, because there’s really no way they can try and seek to overturn a jury’s judgment at the Sixth Circuit or Supreme Court,” she said.

But ultimately, “that’s not what this is about,” Minter said.

“This is an entering wedge strategy,” she said, “and Liberty Counsel has long been trying to reverse Obergefell since it was decided.”

A need for ‘course correction’

The Orlando-based Liberty Counsel bills itself as a “litigation, education and public policy ministry,” a “corporate expression of Christian believers who profess Jesus Christ as Lord and Savior,” that embraces a “worldview that is historically Christian and biblical.”

After the brief was filed to the appellate court, the firm said in a statement that its “goal” is to overturn Obergefell, and this case “has the potential” to do it.

“Kim Davis deserves justice in this case since she was entitled to a religious accommodation from issuing marriage licenses under her name and authority,” Liberty Counsel founder and chairman Mat Staver said.

Liberty Counsel has long said its goal with Davis’ case is to overturn Obergefell. But the latest appeal was filed with a new weapon in its arsenal: the high court’s overruling of Roe, or the right to abortion up to the point of viability — a previously-held constitutional right preserved under the same provisions in the Fourteenth Amendment that protect gay marriage.

The brief cites the logic applied in Dobbs v. Jackson Women’s Health Organization, the case upheld by the Supreme Court in 2022 that overturned half a century of precedent in Roe, as a reason why the case against Davis should be tossed.

Since the case against Davis began, the high court has chipped away at the existence of substantive due process rights under the Fourteenth Amendment’s equal protection clause by overturning Dobbs — the same provision of the U.S. Constitution that the high court found protections for same-sex marriage.

Though the right to abortion or marriage are not explicitly outlined in the Constitution — as is the case for many other rights — justices read the right to same-sex marriage and abortion falling under the constitutional right to privacy under the Fourteenth Amendment, free from governmental interference.

When the high court overturned Dobbs, it chipped away at that previously bestowed right, opening the door for similar constitutional rights to be challenged, like same-sex marriage and access to contraception, scholars interviewed for this story said.

Because of this, Davis’ attorneys are asking the appellate court — and eventually the Supreme Court — to overturn Obergefell.

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Not only should the court reconsider this right in Davis’ case, but her attorneys argue the courts should re-consider Griswold v. Connecticut, the landmark 1965 case that protects access to birth control.

“The time has come for a course correction,” they argue.

Sam Marcosson, a law professor at the University of Louisville, said the merits of the argument Davis’ attorneys are presenting are not outlandish. But he doesn’t think her particular plea as a plaintiff is one that will sway the court to move the needle on gay marriage.

Davis was a public employee at the time, who was by statute obligated to uphold the state and federal constitutions. Because of Obergefell, and and former Gov. Steve Beshear’s insistence at the time that Davis follow the rule of law, the case was always fairly clear-cut.

“Once the court decided Obergefell, it was her office’s and the state of Kentucky’s obligation to comply with that,” Marcosson said.

Even if she had been granted a legal accommodation for her religious beliefs — an out to accommodate her views while also fulfilling the constitutional rights of gay couples — she didn’t ask for one at the time, he added. And even if she had, “it does not allow for violation of the constitutional right” was established in Obergefell.

“She really doesn’t have a leg to stand on, in my view,” Marcosson said. “Kim Davis and her appeal are almost certain not to be the occasion for the court to take up” a real challenge to gay marriage.

Were the high court ever to overrule Obergefell, they would likely only do so “prospectively,” as in, “they would look for a case that involved future applications of the right to same-sex marriage,” rather than “anything that happened in the past.”

Same-sex marriage is not a bulletproof constitutional right, Marcosson agreed. Though Davis’ case likely won’t lead to a toppling of that precedent, it’s part of a longer-term legal strategy.

Though Kim Davis and her appeal “are almost certain to go nowhere,” Marcosson said, “they recognize that sometimes you have to plant the seeds two, three, four cases in advance to find the right vehicle.”

The strategy is about “exhausting every appeal,” Minter agreed.

Laying the groundwork to get a preliminary opinion on an appeal, even if you lose, can be just as important to the end goal, Marcosson.

“Sometimes it’s about the litigation strategy — not necessarily about winning this particular one on this particular occasion, but by laying the groundwork,” he said. “Even if they can lose in the Sixth Circuit, if they can get an opinion that indicates there’s some merit, that Dobbs does undermine Obergefell, then you’ve started to chip away and plant seeds for the future.”