Liberty Counsel has asked the U.S. Supreme Court to review Davis v. Ermold on behalf of Kim Davis, a former Rowan County Kentucky Clerk who was the first victim jailed, sued, and held personally liable post-Obergefell for her sincerely held religious beliefs on marriage. Believing marriage as a union between one man and one woman, Davis ceased issuing any marriage licenses while she sought an accommodation for her religious beliefs. The courts then used Obergefell, which legalized “same-sex marriage” nationwide, to deny her a religious accommodation that unconstitutionally forced her to choose between her religious beliefs and her livelihood.

This case began Friday, June 26, 2015, when “five lawyers” on the U.S. Supreme Court released the Obergefell opinion that declared same-sex couples have the right to be “married.” However, as the clerk of Rowan County, Kentucky, Davis had no authority to issue marriage licenses to same-sex couples without specific direction from the state statutes. And doing so would violate her religious beliefs. That very afternoon, Democrat Kentucky Governor Steve Beshear sent a letter to all county clerks declaring they must issue marriage certificates to same-sex couples.

However, Gov. Beshear was effectively ordering Kentucky clerks to break clearly established Kentucky law that marriage was between one man and one woman, and that clerks were only authorized to issue marriage licenses in strict compliance with state law. In fact, the Kentucky Senate President sided with Davis and made clear that every action pertaining to marriage is highly regulated by the state. Therefore, any clerk that issued marriage licenses without the sanction of Kentucky law could be held liable for criminal charges. Clerks like Davis were paralyzed. If she followed the governor’s order, she could have been charged with a misdemeanor. If she waited until the legislature acted, she would be sued.

Gov. Beshear’s order was doubly problematic for Davis, a born-again, Bible-believing Christian, who could not violate the tenets of her faith any more than she could deny the Savior who rescued her.  

On Monday morning, June 29, 2015, Davis wrote to the Kentucky legislature requesting to exercise her constitutional religious freedom rights for religious accommodation. She wished no one ill or harm. Her faith simply prevented her from putting her name as an official seal on a document that violated God’s Word. 

Rather than removing her name from the license, as Davis wisely requested, a federal judge threw her in jail for six days, catapulting this case to international fame.

It wasn’t until December 2015 that newly elected Republican Governor Matt Bevins issued an executive order giving Davis and all the county clerks a religious accommodation. Then in April 2016, the Kentucky legislature unanimously passed a law codifying those accommodations for all Kentucky state officials. 

But that did not stop the LGBTQ community from targeting Davis, who selected her solely to mock the Christian faith. The two men could have gone to any number of nearby clerks to get a license. But they wanted Davis’ name on their license. In 2015, the two went on a public harassment campaign to shame and humiliate Davis traveling to her office multiple times to film her as they mocked her faith, and sharing videos on social media platforms in order to publicly humiliate the soft-spoken Christian woman. The men became “internet famous,” even landing a full-length feature article in GQ magazine celebrating their antics. The two men told GQ magazine in December 2015 that they had never even discussed “marriage” before they heard about Davis on social media.

When their internet fame wore off, they decided to sue Davis for “hurt feelings.” One jury, hearing the case for different plaintiffs, returned a verdict for zero dollars. The Ermold jury inexplicably returned $50,000 per plaintiff verdict for a total of $100,000 based solely on subjective emotional distress with no actual or out-of-pocket damages. And the judge who threw Davis in jail added $260,000 for attorney’s fees and costs, for a total of $360,000 levied against her personally.

According to the Eleventh Amendment, a government official acting in an official capacity has “immunity” and cannot be held personally liable. However, the court stripped Davis of this government shield. But even in her personal capacity, Davis (like any person) has an absolute First Amendment defense against a claim solely based on emotional damages, yet the court stripped this away as well.

Liberty Counsel is asking the US Supreme Court to (1) overturn this unjust judgement against Davis by finding that she has an affirmative First Amendment Defense, and (2) overturn Obergefell v. Hodges.

The petition states that the lower courts stripped Davis of any government immunity as a state actor and then denied her First Amendment protections as an individual leaving her defenseless before the court. As a result, Davis served six days in jail and now has a $360,000 judgment levied against her personally for upholding her religious faith on traditional marriage. However, the denial of Davis’ First Amendment protections conflicts with U.S. Supreme Court precedent in Snyder v. Phelps that the First Amendment provides an affirmative defense to emotional distress claims, which is exactly what plaintiffs Ermold and Moore presented in court. Ermold and Moore sued because Davis herself did not personally issue them a marriage license.

The legal questions Liberty Counsel presents to the U.S. Supreme Court are: 

1. Whether the First Amendment Free Exercise Clause provides an affirmative defense to tort liability based solely on emotional distress damages with no actual damages in the same manner as the Free Speech Clause under Snyder v. Phelps, 562 U.S. 443 (2011).

2. Whether a government official stripped of Eleventh Amendment immunity and sued in her individual capacity based solely on emotional distress damages with no actual damages is entitled to assert individual capacity and personal First Amendment defenses in the same or similar manner as any other individual defendant like in Synder v. Phelps, 562 U.S. 443 (2011), or does she stand before this Court with no constitutional defenses or immunity whatsoever.

3. Whether Obergefell v. Hodges, 576 U.S. 644 (2015), and the legal fiction of substantive due process, should be overturned.

Liberty Counsel’s petition opens by citing several dissenting Justices from the 5-4 Obergefell opinion who predicted it would threaten the religious liberty of those who believe that marriage is a sacred institution between one man and one woman. Notably, Justice Clarence Thomas said that Obergefell would have “potentially ruinous consequences for religious liberty.” 

“Yet, that is what happened here,” stated Liberty Counsel. “Davis was jailed, hauled before a jury, and now faces crippling monetary damages based on nothing more than purported emotional distress.” A decision like that where government defendants are stripped of their immunity and stand before a court as an individual without any personal First Amendment defenses “would mean government officials shed their constitutional rights upon election, appointment, or other entrance of government service. That cannot be right,” wrote Liberty Counsel. 

The petition also draws a parallel with abortion and the 2022 Dobbs decision, which declared the Due Process Clause “does not secure any substantive rights,” including abortion.  Therefore, Liberty Counsel noted, it does not secure a right to “same-sex marriage” either, and “especially not a right to receive a ‘same-sex marriage’ license from a specific government official, regardless of that individual’s religious convictions.”

“If ever there were a case of exceptional importance, the first individual in the Republic’s history who was jailed for following her religious convictions regarding the historic definition of marriage, this should be it,” concluded Liberty Counsel.

Liberty Counsel Founder and Chairman Mat Staver said, “Kim Davis’ case underscores why the U.S. Supreme Court should overturn the wrongly decided Obergefell v. Hodges opinion because it threatens the religious liberty of Americans who believe that marriage is a sacred union between one man and one woman. A person cannot stand before the court utterly defenseless while facing claims of emotional distress for her views on marriage. Yet, that is the result of Obergefell, which led these courts to strip Davis of any personal First Amendment defense. Obergefell cannot just push the First Amendment aside to punish individuals for their beliefs about marriage. The First Amendment precludes making the choice between your faith and your livelihood. The High Court now has the opportunity to finally overturn this egregious opinion from 2015.”