Davis v. Ermold

In 2015, the Supreme Court held in Obergefell v. Hodges that the United States Constitution prohibits bans on same-sex marriage, as existed in several states, including Kentucky, at the time. Following the Court’s decision, the Governor of Kentucky directed all county clerks in the state to comply with Obergefell and issue marriage licenses to all otherwise-eligible couples, regardless of sex. Rowan County Clerk Kim Davis refused. Based solely on her personal opposition to same-sex marriage, Davis adopted a policy by which her office would not issue any marriage licenses all. Several couples sued Davis, and a district court ordered her to perform her legal responsibilities by issuing marriage licenses to legally-eligible couples, citing Obergefell. The Sixth Circuit and Supreme Court rejected her requests to stay that order. She refused to comply and was held in contempt of court. Other staff in her office then issued marriage licenses in compliance with the court order.

Two couples, David Ermold and David Moore, and James Yates and Will Smith, continued to seek damages from Davis based on her violation of their constitutional right to marry. Davis argued that she was immune from suit under the doctrine of qualified immunity. The district court disagreed, finding that, under clearly-established law, Davis’s “no-marriage policy” was a direct and substantial interference on the couples’ right to marry and subject to strict scrutiny, which it did not survive. Davis appealed, and the Sixth Circuit affirmed, finding that Obergefell clearly established the unlawfulness of her conduct and that Davis’s claim that her policy was an “accommodation” under the Kentucky Religious Freedom Restoration Act lacked legal support. 

Davis petitioned for review in the Supreme Court. Public Citizen serves as co-counsel for the two couples at the Supreme Court stage, opposing the petition. The brief in opposition to the petition explains that the Sixth Circuit was correct to find that Davis’s “no-marriage policy” was an unconstitutional ban on marriage under Obergefell. It explains as well that, even under other frameworks, the policy would be unconstitutional given clearly-established law. The opposition also rebuts Davis’s argument that state law allowed her to “self-accommodate” by eliminating marriages in the county and argues that she was not entitled to qualified immunity based on her refusal to perform a non-discretionary function. In October 2020, the Supreme Court denied the petition.