The Evidence Does Not Support the Kim Davis Verdict

Feb 28, 2024

Liberty Counsel filed a reply brief this week in Ermold v. Davis to the U.S. District Court of Eastern Kentucky supporting its previous motion to reverse the jury verdict against former Rowan County Kentucky Clerk Kim Davis who was sued by two same-sex couples for not issuing them marriage licenses. The Ermold plaintiffs objected to the motion to reverse the verdict citing their emotional distress justified compensation. However, Liberty Counsel argues there was little evidence to support emotional damages and so the jury’s verdict should be reversed. 

The Ermold plaintiffs asked for $50,000 each in damages and a jury awarded them a total of $100,000. Last December, Judge David Bunning awarded the plaintiffs an additional $246,000 in attorney’s fees and $14,000 in expenses. If the motion is denied, Liberty Counsel will then appeal the case to the Sixth Circuit Court of Appeals. 

The Ermold v. Davis case, along with a second case in Yates v. Davis, both involve a same-sex couple who sued Davis in 2015 following the Supreme Court’s Obergefell v. Hodges decision regarding “same-sex marriage.” During the trial, two juries heard the same evidence and the same arguments in both cases. The jury in the Yates case awarded zero damages because the evidence did not support the awarding of any damages. The plaintiffs in that case originally asked for $300,000 in damages.

However, without any evidentiary support, the Ermold jury reached a verdict of $50,000 for each plaintiff. The evidence presented at trial simply does not support that verdict because there were no lost wages, and they presented no supporting testimony regarding emotional injury. The Ermold jury verdict is unsound, and this case could eventually go to the U.S. Supreme Court and potentially overturn the 2015 case of Obergefell v. Hodges.

The plaintiffs in Ermold asked for damages alleging that David Ermold was terminated from the University of Pikeville because of the Kim Davis case. During the trial, the Human Resource Director testified that was not true and that Ermold’s position was downsized along with other positions. The Ermold plaintiffs then changed gears during the trial to allege they should receive damages for hurt feelings. But they presented no evidence to support this allegation.

The Ermold case should never have gone to the jury. Judge Bunning also improperly allowed questions concerning whether any potential juror had religious or moral objections to “same-sex marriage.” The judge overruled Liberty Counsel’s objection, and that permitted the plaintiffs to exclude all jurors that have religious beliefs and those who had objections to “same-sex marriage.” That question essentially excluded jurors based on religion, which is unlawful under current legal precedent and federal law.

Liberty Counsel argues that Davis should not be liable for any damages because she was entitled to a religious accommodation from issuing marriage licenses under her name and authority that conflicted with her religious beliefs. In December 2015, when newly elected Republican Governor Matt Bevin took office, he granted religious accommodation to all clerks by Executive Order. Then in April 2016, the legislature unanimously granted religious and conscience accommodation to all clerks from issuing marriage licenses that conflict with their religious beliefs.

Liberty Counsel Founder and Chairman Mat Staver said, “The evidence does not support the verdict. The Yates jury heard the same evidence and awarded zero damages. Because of Kim Davis, every clerk in Kentucky now has the freedom to serve without compromising their religious convictions and conscience. If this case remains wrongly decided, it has the potential to overturn Obergefell v. Hodges and extend the same religious freedom protections beyond Kentucky to the whole nation. 

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