Liberty Counsel will ask the U.S. Supreme Court to review former Rowan County Kentucky Clerk Kim Davis’ case regarding whether the First Amendment shields her from liability and damages for refraining from issuing a “same-sex marriage” license against her religious beliefs. The full Sixth Circuit Court of Appeals recently denied Davis’ request to rehear her case after a three-judge panel affirmed the jury verdict against her. However, the appeals court indicated this is potentially a case of “first impression,” meaning that Davis’ case presents a novel or unique question of law for which the courts have not settled on an answer.

The case has raised the question of whether a government official sued in an individual capacity and stripped of governmental immunity may assert a personal First Amendment defense to monetary damages. By taking the case, SCOTUS can answer the question of “first impression,” resolve any conflicts with Supreme Court precedent, and ensure that former government defendants standing before the Court in their personal capacity do not lose First Amendment protections.

Liberty Counsel has argued that Davis found herself having to choose between her religious beliefs and her job after the High Court’s Obergefell decision read a right to “same-sex marriage” into the Fourteenth Amendment, even though it is not found explicitly in the text. Nevertheless, the Sixth Circuit panel held that the First Amendment does not shield Davis in her individual capacity because her actions stemmed from being a state actor at the time. Liberty Counsel contends that since Davis now stands before the Court solely as an individual and stripped of any government immunity protection, she must have personal defenses available to her since “First Amendment protection is afforded to all citizens.”

In December 2023, the jury in Ermold v. Davis awarded $50,000 in damages to both David Ermold and David Moore for “emotional distress” based on “hurt feelings” after Davis did not issue them a marriage license but referred them to someone who would. In an identical case, Yates v. Davis, another same-sex couple presented the same arguments but that jury awarded them zero damages because the evidence did not support the awarding of any damages

Liberty Counsel Founder and Chairman Mat Staver said, “We will petition the U.S. Supreme Court as the next step to give Kim Davis justice in this case since the emotional distress damage award against her in her individual capacity is barred by the First Amendment. This case underscores why the U.S. Supreme Court should overturn Obergefell v. Hodges, because that decision threatens the religious liberty of many Americans who believe that marriage is a sacred institution between one man and one woman. The First Amendment precludes making the choice between your faith and your livelihood.”