Kim Davis can be sued for refusing to issue marriage licenses to same-sex couples: appeals court

Kentucky county clerk Kim Davis speaks during an interview on Fox News Channel's 'The Kelly File' in New York September 23, 2015. | (Photo: Reuters/Brendan McDermid)

Former Kentucky county clerk Kim Davis, who garnered national headlines in 2015 for refusing to issue marriage licenses to same-sex couples following the U.S. Supreme Court decision legalizing gay marriage, can be sued for her actions.

A three-judge panel of the United States Court of Appeals for the Sixth Circuit ruled unanimously last Friday that while Davis could not be sued on the basis of her former duties as a county clerk, having what the court called “sovereign immunity,” she could still be sued as an individual, denying her “qualified immunity.”

“Because Davis acted on Kentucky’s behalf when issuing (and refusing to issue) marriage licenses, sovereign immunity protects her … from an official-capacity suit,” wrote Circuit Judge Richard Griffin, author of the opinion of the court.

“… plaintiffs pleaded a violation of their right to marry: a right the Supreme Court clearly established in Obergefell. The district court therefore correctly denied qualified immunity to Davis.”

Circuit Judge John K. Bush, another member of the panel, authored a concurring opinion in which he argued that Davis showed an “anti-homosexual animus.”

“Davis knew or ought to have known, to a legal certainty, that she could not refuse to issue marriage licenses, as was her duty under state law, because of moral disapproval of homosexuality,” he wrote.

“I therefore agree with the Majority that Plaintiffs have pleaded a violation of their constitutional right to marriage based on Davis’s refusal to issue marriage licenses and that the district court correctly denied qualified immunity to Davis because she violated clearly established rights.”

The Liberty Counsel, a conservative law firm representing Davis, released a statement last Friday saying that “her future is in real jeopardy” because Davis “refused to endorse what God prohibits.”

“No one should ever be punished for exercising his or her religious freedom. But that is exactly what same-sex couples want to do to Kim,” stated Liberty Counsel.

“They’re eager to force her to pay hundreds of thousands of dollars in fees or damages—possibly bankrupting her and her husband, Joe.”

The litigation against Davis remains ongoing at the district level. The appeals court also upheld an earlier ruling granting an attorney fee award to other couples denied marriage licenses by Davis, according to Reuters.

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