Liberty Counsel explained: “In the original 2015 marriage license case, Miller v. Davis, Kim Davis spent six days in jail for refusing to violate her conscience by issuing marriage licenses to same-sex couples under her name and authority. As a result, Kentucky Governor Matt Bevin signed an executive order creating a new marriage license form removing county clerks’ name and authority, and the Kentucky General Assembly unanimously made Governor Bevin’s protections permanent for Davis and her fellow county clerks.”
Roger Gannam, Liberty Counsel’s assistant vice president of legal affairs, said the Ermold and Yates plaintiffs “simply cannot be satisfied with the marriage licenses they received while Kim Davis was in jail.”
“The Commonwealth of Kentucky has moved on, and the plaintiffs’ renewed attempts to seek money and attention should be dismissed so that Kim Davis can move on with serving the people of Rowan County,” he said.
One of the motions to dismiss explains bluntly: “This case is not about whom a person may marry under Kentucky law, whether Kentucky must license the marriage of a same-sex couple, or even whether plaintiffs could obtain a Kentucky marriage license when they wanted one. Nor is this case about a county clerk who wanted to relitigate the Supreme Court’s decision in Obergefell v. Hodges, or to prevent Plaintiffs or any other same-sex couple from receiving a marriage license in Kentucky.”
The filing continues: “Rather, this case has always been about Plaintiff’s attempt to force an ‘all or nothing’ choice between same-sex marriage on the one hand, and religious liberty on the other, with no regard whatsoever for any reasonable accommodation. Now that Kentucky has moved on, after its highest officials changed the law to vindicate Davis’ religious liberty rights and provide her requested accommodation, even while ensuring no Kentuckian was denied a valid marriage license, plaintiffs want to punish Davis for resisting an act that would have violated her deeply held religion convictions and conscience.
“Under well-established precedent, Davis is immune from plaintiffs’ damages claims – by Eleventh Amendment sovereign immunity in her official capacity as a state official, and by qualified immunity in her individual capacity.”
The filing points out that the plaintiffs have “no cognizable federal constitutional question.”
“Plaintiffs have failed to identify any federal constitutional right to receive a marriage license from a particular state official (Davis) at a particular place (Rowan County), when no policy ever prevented either appellant from marrying whom he wanted to marry.”
The heart of the matter, the filing explains, is that the plaintiffs demand a right “to marry includes the right to be issued marriage license by Davis, in Rowan County.”
And, the filing notes, Kentucky law requires that “government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act.”
Specifically, the filing says the U.S. Supreme Court, in the marriage case, “specifically recognized the tensions that would occur for religious believers and in the law regarding religious accommodations.”
“The court also specifically contemplated how to analyze claims of qualified immunity in the face of such tensions. … When plaintiffs filed their complaint just two weeks after the Obergefell decision, the Kentucky courts had not determined whether Kentucky RFRA would afford a court clerk, who is an elected official, a reasonable accommodation of her religious beliefs. The right to same-sex ‘marriage’ was literally brand new.”
Davis’ lawyers at one point said, “Unsatisfied with the status quo, plaintiffs are apparently looking to stir up controversy where it does not exist, perhaps to drive-up their own attorneys’ fees in this litigation.”
Earlier, a federal magistrate rejected the ACLU’s demand for $231,000 in legal fees from Davis.
Magistrate Edward B. Atkins wrote in an order that the ACLU and its clients were not the winners, so they couldn’t claim the fees. In such cases, U.S. law provides that the winners in the case have their fees paid by the losers.
The magistrate found “the plaintiffs are not ‘prevailing parties’ … and are therefore not entitled to an award of attorneys’ fees.”