Legal Battle Challenges Obergefell’s Impact on Religious Liberty
Washington, D.C. – Liberty Counsel has petitioned the U.S. Supreme Court to review Davis v. Ermold on behalf of Kim Davis, the former Rowan County, Kentucky, clerk who became the first person jailed, sued, and held personally liable after the Obergefell v. Hodges decision for adhering to her religious beliefs about marriage. Davis, who believes marriage is a union between one man and one woman, stopped issuing all marriage licenses to seek a religious accommodation. Courts, citing Obergefell—which legalized same-sex marriage nationwide—denied her request, forcing her to choose between her faith and her livelihood.
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Background of the Case
On June 26, 2015, the U.S. Supreme Court’s Obergefell decision, described by Liberty Counsel as the work of “five lawyers,” declared that same-sex couples have a right to be “married.” As Rowan County clerk, Kim Davis lacked authority to issue marriage licenses to same-sex couples without state law changes, and doing so would violate her deeply held religious beliefs. That same afternoon, then-Democrat Kentucky Governor Steve Beshear ordered all county clerks to issue same-sex marriage licenses, despite Kentucky law defining marriage as between one man and one woman.
This order placed clerks like Davis in a bind: issuing licenses could lead to misdemeanor charges for violating state law, while waiting for legislative action risked lawsuits. For Davis, a “born-again, Bible-believing Christian,” complying with the governor’s order was impossible, as it would mean violating “the tenets of her faith” and denying “the Savior who rescued her.”
On June 29, 2015, Davis requested a religious accommodation from the Kentucky legislature to remove her name from marriage licenses, aiming to avoid endorsing documents that conflicted with her faith. Instead of granting this, a federal judge jailed her for six days, thrusting her case into the international spotlight.
Legal and Legislative Developments
In December 2015, newly elected Republican Governor Matt Bevin issued an executive order granting Davis and other clerks a religious accommodation. By April 2016, the Kentucky legislature unanimously codified these accommodations for state officials. However, this did not deter legal action against Davis. Two men, David Ermold and David Moore, targeted her, seeking a license bearing her name despite having access to nearby clerks. Liberty Counsel claims the men chose Davis “solely to mock the Christian faith,” visiting her office repeatedly to film and publicly shame her, gaining “internet fame” and a feature in GQ magazine. The men admitted to GQ in December 2015 that they had not discussed marriage until learning about Davis on social media.
When their publicity faded, Ermold and Moore sued Davis for “hurt feelings.” One jury awarded zero dollars to different plaintiffs, but the Ermold jury awarded $50,000 per plaintiff—totaling $100,000—for emotional distress, despite no actual damages. The judge who jailed Davis added $260,000 in attorney’s fees, resulting in a $360,000 personal judgment against her.
Liberty Counsel’s Supreme Court Petition
Liberty Counsel argues that the lower courts stripped Davis of Eleventh Amendment immunity as a government official and denied her First Amendment protections as an individual, leaving her “defenseless before the court.” She served six days in jail and now faces a $360,000 judgment for upholding her beliefs. The petition cites Snyder v. Phelps (2011), which established that the First Amendment provides a defense against emotional distress claims—the sole basis of Ermold and Moore’s lawsuit.
The petition poses three key questions to the Supreme Court:
- Does the First Amendment’s Free Exercise Clause provide a defense against tort liability for emotional distress claims, as the Free Speech Clause does under Snyder v. Phelps?
- Can a government official, stripped of Eleventh Amendment immunity and sued personally for emotional distress, assert First Amendment defenses like any other individual, or is she left without constitutional protections?
- Should Obergefell v. Hodges (2015) and its reliance on substantive due process be overturned?
Liberty Counsel cites dissenting justices from the 5-4 Obergefell decision, including Justice Clarence Thomas, who warned of “potentially ruinous consequences for religious liberty.” The petition argues that Davis’ case fulfills this prediction, as she was “jailed, hauled before a jury, and now faces crippling monetary damages based on nothing more than purported emotional distress.” It contends that stripping government officials of constitutional defenses upon entering public service “cannot be right.”
Drawing a parallel to the 2022 Dobbs decision, which rejected substantive due process rights for abortion, Liberty Counsel argues that Obergefell similarly lacks a basis for securing a right to same-sex marriage, particularly one requiring specific officials to issue licenses despite religious objections.
Liberty Counsel’s Argument
Liberty Counsel Founder and Chairman Mat Staver emphasized the broader implications: “Kim Davis’ case underscores why the U.S. Supreme Court should overturn the wrongly decided Obergefell v. Hodges opinion because it threatens the religious liberty of Americans who believe that marriage is a sacred union between one man and one woman. A person cannot stand before the court utterly defenseless while facing claims of emotional distress for her views on marriage. Yet, that is the result of Obergefell, which led these courts to strip Davis of any personal First Amendment defense. Obergefell cannot just push the First Amendment aside to punish individuals for their beliefs about marriage. The First Amendment precludes making the choice between your faith and your livelihood. The High Court now has the opportunity to finally overturn this egregious opinion from 2015.”
The petition concludes: “If ever there were a case of exceptional importance, the first individual in the Republic’s history who was jailed for following her religious convictions regarding the historic definition of marriage, this should be it.”
