Liberty Counsel filed a reply brief to the U.S. Supreme Court in Davis v. Ermold on behalf of Kim Davis, a former Rowan County Kentucky Clerk. Davis was the first victim jailed, sued, and held personally liable post-Obergefell for her sincerely held religious beliefs on marriage. The case presents to the High Court two questions: (1) whether the First Amendment is an affirmative defense to a government official sued in her individual capacity where the claim is for emotional distress allegedly resulting in hurt feelings connected to religious expression, and (2) whether the Obergefell opinion was wrongly decided and should be overturned. The Court is expected to decide soon whether to take the case.

Davis temporarily ceased issuing any marriage licenses from June 29 to early September 2015 after the Obergefell opinion shredded state marriage laws. She ceased issuing all marriage licenses so not to discriminate against anyone while she sought an accommodation under the First Amendment for her religious beliefs. Three sets of plaintiffs sued Davis, and a federal judge remanded Davis to prison for six days. While she was in prison, a deputy clerk struck through Davis’ name and issued the licenses. One couple was satisfied and dropped their lawsuit.

But two sets of plaintiffs, including David Ermold and David Moore, sought to mock Davis’ Christian faith by forcing her name on their marriage license through litigation. Their attempt failed when Gov. Steven Beshear agreed that the altered license without Davis’ name was valid. From early September onward, licenses were issued without Davis’ name on them. In December 2015, newly elected Governor Matt Bevin issued an executive order granting the accommodation Davis sought. Then in April 2016, the Kentucky legislature unanimously codified the religious exemption by removing the names of all clerks from the state’s marriage licenses.

Prior to this, however, the courts used Obergefell to deny Davis a religious accommodation and took away her liberty with six days in jail, which unconstitutionally forced her to choose between her religious beliefs and her livelihood. 

Ermold and Moore could have gone to any number of nearby clerks to get a marriage license. But they wanted Davis’ name on their license. In 2017, Ermold and Moore amended their complaint and sued Davis in her individual capacity for emotional distress for “hurt feelings” allegedly related to Davis’ religious expression.

In 2023, the cases of the two sets of plaintiffs went to trial. One jury, hearing the case for different plaintiffs, returned a verdict for zero dollars. The Ermold and Moore 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. 

“This entire course of litigation has never been about getting a marriage license,” wrote Liberty Counsel. “[Ermold and Moore] continued this litigation long after obtaining their license [without Davis’ name] in September 2015 to punish Davis for not placing her name on their license.”

While Obergefell “shredded the marriage laws of Kentucky,” it did not establish a right to obtain a marriage license with the name of a specific clerk. This means Davis has a First Amendment defense against Ermold and Moore’s “emotional distress,” and she should never have been put in jail or faced liability because of Obergefell, noted Liberty Counsel.

After 10 years of litigation, Davis has always sought refuge in the First Amendment. Davis, even as a government official, and like any person, has an absolute First Amendment defense against a claim solely based on emotional damages, wrote Liberty Counsel. Yet, the lower courts had stripped this protection away from Davis.

Therefore, Liberty Counsel is asking the U.S. Supreme Court to settle the unique question of whether a government official—stripped of Eleventh Amendment immunity and sued in her personal capacity for emotional distress—may raise the First Amendment as a defense like any other citizen. 

The brief argues, “it cannot be that government officials are stripped of all First Amendment defenses upon election.” Just as the First Amendment provides protection for government employees in their personal capacity, Davis is also entitled to seek refuge in the Free Exercise Clause as a defense against claims of emotional damages.

“[C]omplementary clauses provide complementary protection,” reads the brief. 

Liberty Counsel is also asking the High Court whether the Obergefell opinion, based on “the legal fiction of substantive due process,” should be overturned.

Liberty Counsel cites 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.” And for Davis, Justice Thomas’ prediction rang true.

“Same-sex marriage is not deeply rooted in the Nation’s history,” wrote Liberty Counsel. Given Obergefell’s “disastrous ends” for Davis, the High Court can still “correct the constitutional error of Obergefell without impacting other substantive due process cases.”

Liberty Counsel Founder and Chairman Mat Staver said, “Obergefell v. Hodges cannot not override the First Amendment to send someone to jail for their religious beliefs on marriage, and it certainly does not establish a right to obtain a marriage license with a specific clerk’s name on it. Kim Davis’ case underscores why the U.S. Supreme Court should overturn the wrongly decided Obergefell opinion because it threatens the religious liberty of Americans who believe that marriage is a sacred union between one man and one woman. Like the abortion decision in Roe v. Wade, Obergefell was egregiously wrong from the start. This opinion has no basis in the Constitution. The High Court should overturn this egregious opinion from 2015.”