Davis claimed that Obergefell v Hodges, the 2015 U.S. Supreme Court decision recognizing a constitutional right to same-sex marriage, did not apply to her because she stopped issuing licenses to everyone regardless of sexual orientation
By Jonathan Stempel
Aug 23 (Reuters) - The Kentucky county clerk who in 2015 gained widespread attention for refusing to issue marriage licenses to same-sex couples may be sued for damages by two of those couples, a federal appeals court ruled on Friday.
In a 3-0 decision, the 6th U.S. Circuit Court of Appeals in Cincinnati said Kim Davis can be sued in her individual capacity, though sovereign immunity shielded her from being sued in her former role as Rowan County Clerk.
Davis claimed that Obergefell v Hodges, the 2015 U.S. Supreme Court decision recognizing a constitutional right to same-sex marriage, did not apply to her because she stopped issuing licenses to everyone regardless of sexual orientation, and the plaintiffs could have obtained licenses elsewhere.
But the appeals court called the Supreme Court decision "as sweeping as it was unequivocal," and said the respective couples - David Ermold and David Moore, and Will Smith and James Yates - could try to show that Davis acted unreasonably.
"In short, plaintiffs pleaded a violation of their right to marry: a right the Supreme Court clearly established in Obergefell," Circuit Judge Richard Griffin wrote. "The district court therefore correctly denied qualified immunity to Davis."
The decision upheld rulings by U.S. District Judge David Bunning in Covington, Kentucky and returned the lawsuits to him. Both couples are now married.
Davis lost her reelection bid as Rowan County clerk last year. She is now retired, according to Mat Staver, the founder of Liberty Counsel, which represented her.
"At the end of the day, she will ultimately prevail. She had no hostility to anyone, given that she stopped issuing all marriage licenses," Staver said in an interview.
"The broader issue is what accommodation a court should provide someone based on their religious beliefs," he added. "It's a matter of time before such a case goes squarely before the Supreme Court."
Michael Gartland, a lawyer for Ermold and Moore, said his clients may ask the full 6th Circuit to review the sovereign immunity issue. "No matter what happens, we're going to trial against Ms. Davis in her individual capacity," he said.
Kash Stilz, a lawyer for Smith and Yates, said his clients were pleased their lawsuit can continue.
The appeals court also upheld a separate attorney fee award to other couples who were denied marriage licenses by Davis.
Both decisions came two hours after another federal appeals court said two Minnesota videographers, Angel and Carl Larsen, could sue the state for requiring them to film same-sex weddings though it violated their Christian beliefs.
The immunity cases are Ermold et al v Davis et al, 6th U.S. Circuit Court of Appeals, Nos. 17-6119 and 17-6233; and Smith et al v Davis et al in the same court, No. 17-6120 and 17-6226. (Reporting by Jonathan Stempel in New York Editing by Marguerita Choy)
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