Kim Davis, the infamous Kentucky county clerk who refused to issue marriage licenses to same-sex couples nearly a decade ago following the Supreme Court ruling making marriage equality the law throughout the U.S., filed a legal challenge against fees she has to pay because of her refusal to comply with the law.
In doing so, Davis’s lawyers argue that Obergefell v. Hodges, the Supreme Court ruling in question, was made in error. They’re seeking to have the fees she owes tossed, and the decision recognizing marriage equality similarly reversed.
Obergefell was narrowly decided in 2015 in a 5-4 decision acknowledging that several states’ laws were discriminatory and violated the 14th Amendment of the Constitution. Far right conservatives have sought to challenge that ruling ever since.
Shortly after the ruling was made, a same-sex couple sought to get a marriage license in the county where Davis had recently been elected clerk. She refused to issue the license, citing her far right Christian views, though she had never refused to issue a license before for any reason other than her prejudice against LGBTQ people.
Subsequently, Davis lost her legal challenge, and was eventually ordered to pay $360,000 in damages and legal fees. On Tuesday, lawyers from Liberty Counsel, a far right legal group that is representing the former clerk, submitted a challenge to those fees to the Sixth Circuit Court of Appeals.
Attorney Daniel Schmid, discussing the challenge in a radio interview this week, denies that Davis was trying to “discriminate against anyone.”
“She was trying to protect her own religious rights. In a country born on the will to be free, we ought to be able to respect those,” Schmid contended.
As a public figure duty-bound to provide government services to everyone equally, Davis undoubtedly discriminated against the same-sex couple based on her own religious prejudices.
The legal challenge portrays Davis as being “one of the first victims” of the Obergefell decision. It seeks to have that ruling re-examined, to determine whether the “right to marry for same-sex couples…instantly overrode the constitutional right to religious accommodation under federal and state law.”
Public government figures are barred from using their own beliefs to make life-altering decisions for people whose beliefs may not align with their own. Davis seeks to become an exception to that standard through this legal filing.
Notably, the challenge from Davis cites the concurring opinion authored by Justice Clarence Thomas in 2022’s Dobbs v. Jackson Women’s Health ruling, which upended nearly half a century of abortion protections in the U.S. Thomas wrote that the Court’s decision in that case didn’t go far enough, and that cases protecting birth control access, the right of LGBTQ people to be free from persecution for engaging in consensual sex, and the ability for same-sex couples to wed, should be reexamined by the conservative Supreme Court.
“Obergefell was wrong when it was decided and it is wrong today because it was based entirely on the ‘legal fiction’ of substantive due process, which lacks any basis in the constitution,” one heading found within Davis’s challenge reads.
Citing Thomas’s concurring opinion, Davis’s challenge states that, “‘[b]ecause the Due Process Clause does not secure any substantive rights, it does not secure a right to [same-sex marriage],’ and especially not a right to receive a same-sex marriage license from a specific government official, regardless of that individual’s religious convictions.”
Importantly, there is no distinctive “same-sex marriage license.” Same-sex couples use the same marriage license application forms that opposite-sex couples use.
Davis’s challenge concludes that this is a “unique opportunity” to “revisit” the Obergefell decision — claiming that it should be overturned partly because acceptance of LGBTQ people “was not grounded in the nation’s history or traditions,” a bizarre standard that conservatives on the Supreme Court created to justify ending protections for reproductive rights.
Davis’s demand for Obergefell to be overturned is opposed by the vast majority of Americans. According to a Public Religion Research Institute (PRRI) poll published in March, 67 percent of Americans back same-sex marriage rights.
That same poll found that 76 percent of Americans favored legislation to protect LGBTQ people from discrimination in housing, employment and public accommodation — the very type of discrimination that Davis engaged in when she utilized her office to subject residents of her county to her personal religious views in 2015.
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