Sixth Circuit Rejects Qualified Immunity for Kim Davis for a Third Time
Not everyone agreed with the Supreme Court’s decision in Obergefell v. Hodges that the Constitution requires equal state recognition of same-sex marriages. Then-serving Rowan County, Kentucky county clerk Kim Davis was among those who thought the decision was wrong, morally and constitutionally. Davis is entitled to her opinion. But she was not entitled to perform her official duties in accord with her personal beliefs and violate the law.
Despite the Supreme Court’s Obergefell decision, and a directive from Kentucky Governor Steve Beshear directing county clerks to “license and recognize the marriages of same-sex couples,” Davis refused. Indeed, Davis refused to allow her office to issue any marriage licenses at all, even after a district court issued a preliminary injunction against her. Davis was ultimately jailed for contempt and sued by a same-sex couple under Section 1983. (You can find my prior posts on Kim Davis here.)
Since being sued, Davis has sought to claim that she is protected by qualified immunity because, even after Obergefell, she claims not to have violated any “clearly established” right of the plaintiffs. The U.S. Court of Appeals for the Sixth Circuit rejected that claim in 2019, and again in 2022. This month, in Ermold v. Davis, the Sixth Circuit rejected it for a third time. Might this time be the charm?
Judge White wrote for the panel, joined by Judge Mathis. Judge Readler concurred in part and concurred in the judgment. His separate concurring opinion makes some points I thought worth highlighting.
Obergefell v. Hodges presented the Supreme Court with an issue that had deeply divided the nation: the right to same-sex marriage. That was certainly true as a question of public policy. Obergefell v. Hodges, 576 U.S. 644, 714 (2015) (Scalia, J., dissenting) (noting “the electorates of 11 States . . . chose to expand the traditional definition of marriage” but that “[m]any more decided not to”). It was arguably even more true as a question of constitutional law. In the end, the Obergefell majority recognized a fundamental right to same-sex marriage. Id. at 656, 670, 681 (majority opinion) (invoking “the transcendent importance of marriage,” its promise of “nobility and dignity,” and its ability to allow same-sex couples to “seek fulfillment in its highest meaning” to hold that “same-sex couples may exercise the fundamental right to marry in all States”). But that view was far from unanimous. See, e.g., id. at 687 (Roberts, C.J., dissenting) (“The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”). In perhaps the opinion’s sharpest rebuke, Justice Scalia described Obergefell as having “discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.” Id. at 718 (Scalia, J.,
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