CINCINNATI, Ohio — A federal appeals court has reinstated a lawsuit filed by two homosexual men who sought damages against Kentucky county clerk Kim Davis for denying them a marriage license because her name would be on it.
As previously reported, U.S. District Judge David Bunning dismissed all outstanding legal challenges against Davis in August after the state legislature passed a law that removed the names of county clerks from marriage licenses, thus assuaging Davis’ concerns.
“In light of these proceedings, and in view of the fact that the marriage licenses continue to be issued without incident, there no longer remains a case or controversy before the court,” he wrote.
Davis had been in national headlines in 2015 after she declined to issue same-sex “marriage” licenses as long as her name was on the documents. Davis, who attends a Oneness Apostolic Pentecostal assembly, said that she would do so if her name was removed.
Her refusal soon led to three lawsuits—Miller v. Davis, Ermold v. Davis and Yates v. Davis—filed by homosexuals who sought to force Davis to issue the licenses.
In September 2015, Bunning ordered that Davis issue the licenses, but as she continued to refuse without the accommodation, Bunning ordered that she be placed behind bars until she was willing to comply. In the meantime, the judge arranged for a deputy clerk to sign the licenses in her absence.
Davis was released from the Carter County Jail five days later after her attorneys filed an appeal of the contempt order, and also because Bunning was satisfied that her deputy clerks were providing the licenses instead. He stipulated her release on the condition that she not interfere with her deputies.
By the end of the year, new Kentucky Gov. Matt Bevin issued an executive order for the Department for Libraries and Archives to release new licenses that do not cite the county or the name of the county clerk. Months later, the state legislature passed a law altering the licenses similar to Bevin’s order.
Bunning therefore dismissed the remaining suits against Davis after determining that their legal challenges were now moot.
However, on Tuesday, the Sixth Circuit Court of Appeals ruled in the case of Ermold v. Davis that the lawsuit can’t be moot because the men didn’t seek an injunction, but rather damages for being denied the license.
“The district court concluded that because Ermold and Moore were eventually issued a marriage license, the dispute in their case was resolved,” it wrote. “We conclude that the district court’s characterization of this case as simply contesting the ‘no marriage licenses’ policy is inaccurate because Ermold and Moore did not seek an injunction, they sought only damages.”
“This action is not a general challenge to Davis’s policy, but rather seeks damages for a particularized harm allegedly suffered by a specific set of plaintiffs,” the court said.
It remanded the case back to Bunning for further review.
Judge Eugene Siler Jr. said that Bunning should have also considered whether the Kentucky Religious Freedom Restoration Act (KRFRA) protects Davis from punishment.
“[T]he district court has never ruled on the effect of that statute upon the conduct of the county clerk,” he wrote. “It should have the first opportunity upon remand to decide whether that or any other provision of the law would protect Davis as a qualified-immunity or absolute-immunity defense under the circumstances.”
Davis’ attorneys with Liberty Counsel note that “[b]efore you can get to damages, you have to jump over qualified immunity, and you have to show that you’re the prevailing party.” They do not believe the men will be able to do so.
“The ruling keeps the case alive for a little while, but it is not a victory for the plaintiffs,” found Mat Staver said in a statement. “We are confident we will prevail.”