Kentucky clerk who refused gay marriage licenses can be sued

The Kentucky county clerk who in 2015 gained widespread attention for refusing to issue marriage licenses to same-sex couples may be sued for damages by two of those couples, a federal appeals court ruled on Friday.

In a 3-0 decision, the 6th U.S. Circuit Court of Appeals in Cincinnati said Kim Davis can be sued in her individual capacity, though sovereign immunity shielded her from being sued in her former role as Rowan County Clerk.

Image: Kim Davis

Davis claimed that Obergefell v Hodges, the 2015 U.S. Supreme Court decision recognizing a constitutional right to same-sex marriage, did not apply to her because she stopped issuing licenses to everyone regardless of sexual orientation, and the plaintiffs could have obtained licenses elsewhere.

But the appeals court called the Supreme Court decision “as sweeping as it was unequivocal,” and said the respective couples - David Ermold and David Moore, and Will Smith and James Yates - could try to show that Davis acted unreasonably.

“In short, plaintiffs pleaded a violation of their right to marry: a right the Supreme Court clearly established in Obergefell,” Circuit Judge Richard Griffin wrote. “The district court therefore correctly denied qualified immunity to Davis.”

The decision upheld rulings by U.S. District Judge David Bunning in Covington, Kentucky and returned the lawsuits to him. Both couples are now married.

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People celebrate during a rally outside the Stonewall Tavern in the West Village in New York on June 26, 2015, after the US Supreme Court's historic decision on same sex marriage. The US Supreme Court ruled on June 26, that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/JEWEL SAMAD (Photo credit should read JEWEL SAMAD/AFP/Getty Images)
A couple kiss to celebrate the US Supreme Court's historic decision on same sex marriage during a rally outside the Stonewall Tavern in the West Village in New York on June 26, 2015, after the US Supreme Court's historic decision on same sex marriage. The US Supreme Court ruled on June 26, that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/JEWEL SAMAD (Photo credit should read JEWEL SAMAD/AFP/Getty Images)
People celebrates during a rally outside the Stonewall Tavern in the West Village in New York on June 26, 2015, after the US Supreme Court's historic decision on same sex marriage. The US Supreme Court ruled on June 26, that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/JEWEL SAMAD (Photo credit should read JEWEL SAMAD/AFP/Getty Images)
People celebrate outside the Supreme Court in Washington, DC on June 26, 2015 after its historic decision on gay marriage. The US Supreme Court ruled Friday that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/ MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
Two women celebrate outside the Supreme Court in Washington DC on June 26, 2015 after its historic decision on gay marriage. The US Supreme Court ruled Friday that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/ MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
Same-sex marriage supporters rejoice after the U.S Supreme Court hands down a ruling regarding same-sex marriage June 26, 2015 outside the Supreme Court in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
People celebrate outside the Supreme Court in Washington, DC on June 26, 2015 after its historic decision on gay marriage. The US Supreme Court ruled Friday that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/ MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
People run under a giant equality flag as they celebrate outside the Supreme Court in Washington, DC on June 26, 2015 after its historic decision on gay marriage. The US Supreme Court ruled Friday that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/ MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
UNITED STATES - JUNE 26: Same-sex marriage supporters from the Human Rights Campaign celebrate after the U.S. Supreme Court legalized same-sex marriages nationwide on Friday, June 26, 2015. (Photo By Bill Clark/CQ Roll Call)
People shout slogans as they celebrate outside the Supreme Court in Washington, DC on June 26, 2015 after its historic decision on gay marriage. The US Supreme Court ruled Friday that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/ MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
WASHINGTON, DC - JUNE 26: Same-sex marriage supporters rejoice after the U.S Supreme Court hands down a ruling regarding same-sex marriage June 26, 2015 outside the Supreme Court in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
WASHINGTON, DC - JUNE 26: Activists hold signs regarding same-sex marriage outside the U.S. Supreme Court June 26, 2015 in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
Same-sex marriage supporters rejoice after the U.S Supreme Court hands down a ruling regarding same-sex marriage June 26, 2015 outside the Supreme Court in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
Same-sex marriage supporters rejoice after the U.S Supreme Court hands down a ruling regarding same-sex marriage June 26, 2015 outside the Supreme Court in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
Same-sex marriage supporters rejoice after the U.S Supreme Court hands down a ruling regarding same-sex marriage June 26, 2015 outside the Supreme Court in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
People shout slogans as they celebrate outside the Supreme Court in Washington, DC on June 26, 2015 after its historic decision on gay marriage. The US Supreme Court ruled Friday that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/ MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
Same-sex marriage supporters hold rainbow flags outside the U.S. Supreme Court June 26, 2015 in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
People wave a giant equality flag in celebration outside the Supreme Court in Washington, DC on June 26, 2015 after its historic decision on gay marriage. The US Supreme Court ruled Friday that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/ MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
A man holds a rainbow flag in support of same-sex marriage outside the U.S. Supreme Court June 26, 2015 in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
The U.S. Supreme Court ruled that gay couples nationwide have the right to marry in a 5-4 decision. How incredible it is to be here as they announced it!
It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality . . . Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. #fbf #equality #lovemustwin #freedomtomarry
People are FREAKING OUT at the Stonewall Inn! Tears, hugs, laughter. http://t.co/bC1RUfEDzk
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Davis lost her reelection bid as Rowan County clerk last year. She is now retired, according to Mat Staver, the founder of Liberty Counsel, which represented her.

“At the end of the day, she will ultimately prevail. She had no hostility to anyone, given that she stopped issuing all marriage licenses,” Staver said in an interview.

“The broader issue is what accommodation a court should provide someone based on their religious beliefs,” he added. “It’s a matter of time before such a case goes squarely before the Supreme Court.”

Michael Gartland, a lawyer for Ermold and Moore, said his clients may ask the full 6th Circuit to review the sovereign immunity issue. “No matter what happens, we’re going to trial against Ms. Davis in her individual capacity,” he said.

Kash Stilz, a lawyer for Smith and Yates, said his clients were pleased their lawsuit can continue.

The appeals court also upheld a separate attorney fee award to other couples who were denied marriage licenses by Davis.

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