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Rowan County Clerk of Courts Kim Davis waves to a crowd of her supporters at a rally in front of the Carter County Detention Center on September 8, 2015 in Grayson, Kentucky. (Ty Wright/Getty Images).
Kim Davis, the former county clerk from Kentucky who infamously refused to grant marriage licenses to same-sex couples after the U.S. Supreme Court legalized gay marriage, is now asking a federal appellate court to nix a jury’s $100,000 civil judgment against her.
Previously the clerk for Rowan County in the Bluegrass State, Davis refused to issue marriage licenses to same-sex couples, citing her religious beliefs. This refusal flew in the face of the landmark 2015 decision in Obergefell v. Hodges as well as an executive order by the governor directing all county clerks to comply with the ruling.
In turn, two couples sued Davis: David Ermold and David Moore, and James Yates and Will Smith. Each couple had been repeatedly denied a marriage license by Davis — who would go on to serve six days in jail before losing reelection to a Democrat in 2018.
In March 2022, U.S. District Judge David Bunning, a George W. Bush appointee, granted the plaintiffs’ motion for summary judgment — finding that Davis had knowingly violated the law.
“Ultimately, this Court’s determination is simple,” the judge opined. “Davis cannot use her own constitutional rights as a shield to violate the constitutional rights of others while performing her duties as an elected official.”
Along the way, Davis tried and failed to secure the privileges of qualified immunity to put the kibosh on the lawsuit. This effort paused the district court level proceedings for well over a year.
But in the end, the U.S. Court of Appeals for the Sixth Circuit declined to grant the former clerk her requested relief — aligning with the same analysis previously employed by Bunning when he previously denied Davis the qualified immunity escape hatch.
“[P]laintiffs have not only ‘alleged’ but also now ‘shown’ that Davis violated their constitutional right to marry,” Circuit Judge Richard Allen Griffin, another George W. Bush appointee, wrote for the panel. “And, as we held three years ago, that right was ‘clearly established in Obergefell.’ Therefore, the district court correctly determined that Davis is not entitled to qualified immunity.”
By early September 2023, a jury was tasked with deciding how much Davis owes the couples for illegally denying their marriage licenses.
In the end, jurors returned a split verdict of $50,000 apiece for Ermold and Moore while Yates and Smith were denied damages altogether.
Counsel for Davis welcomed the no-damages verdict as “complete vindication” and blasted the money judgment as “damages for hurt feelings” while vowing to appeal before the Sixth Circuit again.
“I have beaten them at the Sixth Circuit three times already in this case and will win the fourth one,” Michael Gartland, the attorney who successfully argued on behalf of Ermold and Moore, told Law&Crime at the time — in response to Davis’ counsel promised appeal.
In the summer of 2024, that promise was kept and on Thursday, the court heard oral arguments in the years-in-the-making case.
“The order just simply doesn’t have any basis to calculate $50,000 — it was pulled out of thin air. Even the plaintiffs said they didn’t know how to calculate it,” defense attorney Matthew Staver argued, according to a courtroom report by Courthouse News Service. “How in the world can the jury calculate what the plaintiffs cannot?”
To hear Davis tell it, the $50,000 number was originally attributed to a lost employment claim — a claim the plaintiffs subsequently dropped. On top of that, Davis argues, the plaintiffs did not offer nearly enough evidence to support damages based on emotional distress.
“[T]he only proof Plaintiffs offered to support their alleged emotional distress was their brief testimony of their own perceived damages, the value of which Plaintiffs readily admit they have no knowledge or understanding,” the Davis appellate brief reads. “No other evidence was presented, and that is plainly insufficient. The district court erred in giving the damages case to the jury.”
In response to those claimed damages, U.S. Circuit Judge Helene White, another George W. Bush appointee, offered some pushback.
“My understanding is that emotional distress damages are compensatory, they compensate for your emotional distress,” White reportedly said. “They aren’t economic damages. They aren’t punitive, they’re definitely compensatory.”
Staver went on to argue that such an award necessarily required the plaintiffs to base the damages on something more concrete.
“In this particular case what you have is zero evidence for $50,000 per plaintiff based solely on emotional distress,” Davis’ attorney said. “There’s no lost wages, there’s no treatment, there’s no injury, there’s no out of pocket expenses. It’s only based on their hurt feelings that occurred when they went to the clerk’s office to get the license and they said Kim Davis’s words caused them the distress.”
Attorneys for the plaintiffs say Davis has not actually offered any legally-cognizable reason to get off the $100,000 hook.
“Davis now appeals for the third time, arguing yet again that she is not liable for her unconstitutional actions,” the Ermold and Moore reply brief reads. “Her arguments are again meritless. The jury acted reasonably in awarding compensatory damages based on extensive evidence of the emotional injury that Davis inflicted on Plaintiffs.”
In their own brief, the plaintiffs argued that the emotional distress damages are a common feature of similarly-situated lawsuits and that appellate courts have very little leeway to undo such awards.
On Thursday, attorney William Powell also argued that the evidence in the record to support his clients’ damages was extensive.
“Plaintiffs here testified extensively about the emotional harm they suffered as a result of the denial of their rights,” the plaintiff’s attorney reportedly said, according to Courthouse News. “There was extensive testimony from both plaintiffs, and I think that testimony stacks up I think quite well to other cases where this court has affirmed emotional distress damages.”
