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Yes, Kim Davis is back. Again. A brief filed this week by her lawyers at Liberty Counsel argues that the Supreme Court's Obergefell v. Hodges ruling should be overturned.
Kim Davis is back, and she’s trying to set up a Supreme Court case to overturn marriage equality.
Davis, as clerk of Rowan County, Ky., shut down all marriage license operations at her office shortly after the high court’s marriage equality ruling in 2015 rather than issue licenses to same-sex couples. She cited religious objections to same-sex marriage.
David Ermold and David Moore, who were denied a license, sued Davis and won. In January, a federal judge ordered Davis to pay $260,104 in fees and expenses to the lawyers who represented them. She had previously been ordered to pay the couple $100,000 in damages.
Davis appealed the order and called for the overturning of Obergefell v. Hodges, the marriage equality ruling, in a brief filed this week with the U.S. Court of Appeals for the Sixth Circuit.
“Plaintiffs failed to present competent evidence of any damages, and instead presented the jury with little more than speculation and conjecture,” the brief reads. “Their case should never have been presented to the jury, and the district court erred in doing so.”
It further argues that “Obergefell was wrong when it was decided and it is wrong today because it was based entirely on the ‘legal fiction’ of substantive due process, which lacks any basis in the Constitution.” Substantive due process is the theory that the Constitution grants certain rights even if they are not explicitly spelled out.
Conservative Supreme Court Justice Clarence Thomas railed against substantive due process in his concurring opinion in Dobbs v. Jackson Women’s Health Organization, the 2022 ruling that overturned Roe v. Wade, the decision that established abortion rights nationwide. Justice Samuel Alito, who wrote the majority opinion in Dobbs, said the ruling should be read narrowly, not infringing on other rights, but Thomas, in his concurring opinion, said the reasoning used in Dobbs should be applied to overturn Obergefell as well as decisions that struck down state sodomy laws and bans on contraceptives. That would take a case getting to the Supreme Court, but Davis and her lawyers at Liberty Counsel, a far-right nonprofit, are trying to construct one.
“Davis acknowledges that this Court does not have the authority to overrule Supreme Court precedent. … Nevertheless, she must present her argument to preserve it,” says a footnote in the brief.
“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 in a press release. “This case has the potential to overturn Obergefell v. Hodges and extend the same religious freedom protections beyond Kentucky to the entire nation.”
Marriage equality received some protection from negative Supreme Court action when President Joe Biden signed the Respect for Marriage Act into law in December 2022. The act writes the rights to same-sex marriage and interracial marriage into federal law, assuring that the U.S. government will recognize these marriages and that all states will recognize those performed in other states. It forbids anyone acting under a state law to discriminate based on the gender or race of a married couple. However, it does not require any state to allow same-sex marriages to be performed.
The Supreme Court’s 6-3 conservative majority would probably overturn Obergefell. While Alito said the Dobbs ruling was not intended to affect marriage rights, he too has called for the overturning of the marriage equality decision. Donald Trump appointee Amy Coney Barrett has suggested that the definition of marriage should be left to individual states. Chief Justice John Roberts dissented from the majority in Obergefell.Obergefell. And the court’s other two conservatives, Neil Gorsuch and Brett Kavanaugh, both Trump appointees, would likely join the others in ruling against marriage equality.
Davis was briefly jailed in 2015 for contempt of court for not complying with a federal judge’s order to issue marriage licenses without discrimination. Eventually, she decided to allow her deputies to serve same-sex couples, and then Kentucky changed its marriage license form so that it does not include the county clerk’s name. This satisfied the religious exemption that Davis said she wanted.
Davis was first elected Rowan County clerk in 2014 as a Democrat. She succeeded her mother, Jean Bailey, who had been the clerk for 37 years. In 2015, Davis switched her party affiliation to Republican. In 2018, she lost her reelection bid to Elwood Caudill Jr.
Chris Hartman, director of Fairness Campaign, Kentucky’s statewide LGBTQ+ rights group, told the Kentucky Lantern that Davis's action is “sad and desperate,” adding, “The threat of anti-LGBTQ hate groups … is real, however, and it comes as no surprise that they are seeking to overturn LGBTQ marriage in America. With an archconservative Supreme Court that’s already upended half a century of abortion rights, anything is unfortunately possible.”
