The couples who sued Rowan County Clerk Kim Davis in 2015 for the right to be granted marriage licenses are entitled to nearly $225,000 in legal fees and court costs, and the state of Kentucky — not Davis herself or Rowan County — must pay them, a federal judge ruled Friday.
Although Kentucky county clerks are elected at the county level, the Rowan County Fiscal Court had no influence over Davis’ decision in summer 2015 to protest the legalization of same-sex marriage in the United States by refusing to issue marriage licenses to anyone, U.S. District Judge David Bunning wrote in his decision. Therefore, it would be unfair to hold the county government responsible for her actions, Bunning wrote.
By contrast, Bunning wrote, Davis’ authority to issue marriage licenses was awarded to her by the state government.
And had the state chosen to, Bunning wrote, it could have pursued criminal penalties against Davis for official misconduct — then-Attorney General Jack Conway, running for governor in 2015, refused a formal request to do so — or the legislature could have impeached her and removed her from office. Instead, the legislature “modified the marriage license form to appease Davis” by removing county clerks’ names as she requested, he wrote.
Bunning rejected holding Davis personally responsible for the debt because, he said, the couples prevailed against her in her “official capacity” as a public official.
“Davis represented the Commonwealth of Kentucky when she refused to issue marriage licenses to legally eligible couples. The buck stops there,” Bunning wrote.
The couples clearly were the prevailing parties in the lawsuit, which entitles them under the law to be compensated for bringing their case, he wrote.
“The plaintiffs prevailed by every measure of victory,” Bunning wrote. “Plaintiffs obtained marriage licenses that could not be revoked. And two of the plaintiff-couples married on those licenses. That is enduring relief. There is nothing more the court could do.”
A spokesman for Gov. Matt Bevin, who expressed support for Davis during his 2015 campaign, said the state’s lawyers are reviewing Bunning’s decision, and no decision has been made about whether to appeal.
Davis’ attorneys at Liberty Counsel, a Florida-based religious advocacy group, said they would appeal the decision even though they were pleased that she wasn’tt held personally responsible for the debt. Bunning erred by finding the couples to be the “prevailing parties” in the case, because the state government made the case moot by modifying the marriage licenses, Liberty Counsel founder Mat Staver said.
“Without prevailing party status, there can be no attorneys’ fees,” Staver said.
Bunning’s decision came in a case involving plaintiffs April Miller, Karen Ann Roberts, Shantel Burke, Stephen Napier, Jody Fernandez, Kevin Holloway, L. Aaron Skaggs and Barry W. Spartman.
“We are pleased with today’s ruling, and we hope this serves as a reminder to Kentucky officials that willful violations of individuals’ civil liberties, such as what occurred here, will not only be challenged but will also prove costly,” said one of the couples’ attorneys, William Sharp, legal director for the ACLU of Kentucky.
“It is unfortunate that Kentucky taxpayers will likely bear the financial burden of the unlawful actions and litigation strategies of an elected official, but those same voters are free to take that information into account at the ballot box,” Sharp said.
In a separate case, Bunning is being asked to award legal fees to another couple who also sued Davis for a marriage license during the same period in 2015. The lawyer for David Ermold and David Moore of Rowan County said he’s “now very optimistic” about his clients’ chances.
“I think this decision is obviously a good sign for us. If they can get attorneys’ fees, then it’s a slam-dunk decision that we’re entitled to attorneys’ fees, too,” attorney Michael J. Gartland said.
After the U.S. Supreme Court’s decision in June 2015 that legalized same-sex marriage nationwide, Davis announced that she held religious objections to gay marriage and would no longer grant marriage licenses to anyone in Rowan County.
The fight over marriage at the Rowan County courthouse became international news, turning Davis into a symbol of conservative resistance, especially after Bunning ordered her to spend several days in jail for contempt of court. Ultimately, she worked out a compromise with the court, allowing one of her deputies who had no objections to issue a modified marriage license to anyone who wanted it. Later, the legislature removed county clerks’ names from Kentucky’s marriage licenses.