Same-Sex Couple Can Sue County Clerk Kim Davis, 6th Circuit Says

Four years ago, as LGBT couples across the country were celebrating the U.S. Supreme Court’s decision in Obergefell v Hodges, a county clerk from Kentucky named Kim Davis decided to take matters into her own hands. She stopped issuing marriage licenses in a form of religious protest and turned herself into a national celebrity of the moment. Now, that moment has found its way up to the 6th Circuit, and the news isn’t good for Ms. Davis.

County Clerk Turned National Celebrity

Do you know who your county clerk is? Most of us don’t. (If you’re in Oakland County Michigan, her name is Lisa Brown, by the way.) County clerks are government officials, many of whom are elected by their neighbors, who perform a variety of ministerial and records-keeping tasks for the local government and court systems. One of their many jobs is to issue marriage licenses to those who qualify under state law.

On June 26, 2015, the definition of “those who qualify” got a lot broader. That was the day that the U.S. Supreme Court issued its opinion in Obergefell v Hodges, ruling that all states must recognize the marriages of same-sex couples living there and that no state could deny a couple a marriage license because they were both of the same sex.

The very next day, in Rowan County, Kentucky, County Clerk Kim Davis did just that. She put a halt to all marriage licenses in the county in what she called a “Heaven or Hell decision.” In the face of court orders, misconduct proceedings, and a contempt hearing that put her in jail, Ms. Davis refused to issue marriage licenses based on her moral objection to homosexuality.

Not surprisingly, she was sued for that decision.

Suing Government Officials Means Dealing with Immunity Claims

Two couples sued Ms. Davis individually and in her official capacity as Rowan County Clerk for denying them their marriage licenses. David Ermond and David Moore, and Will Smith and James Yates, each claimed that as residents of Rowan County, Kim Davis improperly refused them marriage licenses and deprived them of their constitutional rights. Now, four years later, that case has resulted in a 6th Circuit Court of Appeals decision about what happens when government officials refuse to do their jobs.

Anytime a person (or couple, in this case) sues a government, they can expect to face claims of governmental immunity. This comes in 2 varieties:

  • Sovereign Immunity protects state governments from being sued in private lawsuits for damages (individuals can still sue to change policies or ask that state laws be ruled unconstitutional)
  • Qualified Immunity protects the individuals who work for those governments when they are doing their jobs

Since Ms. Davis was sued in both contexts, she claimed both immunities, and that’s what the 6th Circuit was weighing in on. (The 6th Circuit is the federal court for most of the mid-west, including Michigan. Its decisions affect Michigan law as well as Kentucky.)

6th Circuit Says County Clerk Was Acting for the State of Kentucky

When it came to sovereign immunity, the court said that Ms. Davis would only be protected if she was acting on behalf of the state, not the local county government. Because Kentucky law controls who can get married and how, she was acting as a state official and could not be sued in her official capacity. However, that’s not to say the court believed she was behaving well. It said:

“[P]laintiffs conflate discretion with insubordination. Kentucky’s marriage-licensing laws gave county clerks no wiggle room. Kentucky required Davis to issue marriage licenses to eligible couples. . . . Davis’s refusal to issue licenses, then, did nothing the change the government she acted for.”

Ermold v Davis, Docket No. 17-6119 (August 23, 2019) at *7.

What this really meant is that the State of Kentucky and Rowan County wouldn’t be the ones paying for the harm caused when Kim Davis denied the couples their marriage licenses. Davis isn’t even the county clerk any longer. That job now belongs to Elwood Caudill, Jr. Because sovereign immunity applied, Caudill and the governments he worked for couldn’t be sued for the damages.

But Kim Davis could.

Qualified Immunity Doesn’t Protect Against Clearly Unconstitutional Denial of Marriage Certificates

Things got darker for Ms. Davis when the 6th Circuit turned its attention to the lawsuit against her, personally. She claimed qualified immunity protected her from actions taken on the job. However, that law only applied if:

  1. She didn’t violate the couples constitutional rights, or
  2. The right she violated wasn’t “clearly established” when she did what she did.

There’s no more clearly established right than when the U.S. Supreme Court hands down a decision on the issue the day before. Ms. Davis was acting in response to a Supreme Court decision that said:

“The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them.”

Obergefell v Hodges, 135 S. Ct. at 2604-05

So she denied them to everybody.

The trouble for Ms. Davis is that there are at least two other U.S. Supreme Court cases that say moral objections to homosexuality are not valid basis for a governmental act. Ms. Davis may have been taking actions based on her religious beliefs, but she was doing it in her job as a government official. And that was “clearly established” as unconstitutional.

What Does This Mean for Kim Davis and the Couples She Refused Certificates?

When Mr. Caudill took over Ms. Davis’s job, the couples in this case were able to get marriage licenses. Both couples are now married. But that doesn’t mean the harm and indignity of being turned away has been cured. With this decision, the 6th Circuit Court has said that the plaintiffs can proceed against Ms. Davis as an individual. They will have a chance to present evidence of the harm she caused, and receive compensation for having their rights violated. Any judgment they receive will come out of Ms. Davis’s pockets.


Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She helps families in Metro Detroit address and resolve child custody and paternity issues. If you need help modifying or enforcing a child custody order, contact Schmidt & Long to schedule a consultation.