The Volokh Conspiracy

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Gay Marriage

No Qualified Immunity for Kim Davis

Government officials fail to follow Supreme Court decisions at their own risk.


Kim Davis believes same-sex marriage is immoral. While serving as County Clerk in Rowan County, Kentucky, Davis refused to issue marriage licenses to same-sex couples because, as she explained, "To issue a marriage license which conflicts with God's definition of marriage, with my name affixed to the certificate, would violate my conscience."

Davis persisted in her position even after Kentucky Governor Steven Beshear ordered county clerks within the state to issue same-sex marriage licenses in order to comply with the Supreme Court's decision in Obergefell v. Hodges. She even spent time in jail for refusing to comply with a court order instructing her to follow the law.

Davis is no longer the Rowan County clerk, but the legal dispute over her refusal to issue marriage licenses to same-sex couples continues. Two same-sex couples who were unable to obtain marriage licenses sued Davis (and the county) seeking damages for the unlawful denial of their constitutional right to marry.

Like just-about-any government official sued for damages, Davis invoked qualified immunity and claimed she was immune from suit. No dice, said the district court in a decision affirmed by the U.S. Court of Appeals for the Sixth Circuit last week. While the county may be immune under sovereign immunity, the court held, Davis could not claim qualified immunity because the right at issue was clearly established at the time of her actions.

Judge Richard Griffin wrote the opinion for the court, joined by Judge Helene White. Judge John Bush wrote separately, concurring in part and concurring in the judgment. While Judges Griffin and Bush disagreed on the proper way to evaluate Davis conduct—and whether they needed to determine the proper level of scrutiny to apply to discrimination against same-sex couples seeking to marry—they agreed on the bottom-line result.

It's quite astounding that this case went this far. As I explained at the time in a series of posts, Kim Davis was entitled to her views about same-sex marriage, but as a government official she was not entitled to place her personal religious views above the obligations of her office. Once the Supreme Court decided Obergefell and lower courts issued orders to enforce the Supreme Court's decision, she had a simple choice: Comply or resign.

Davis' obstinacy is not only going to cost her. It will cost the county as well. In separate litigation, same-sex couples who were ultimately able to obtain marriage licenses sought attorney's fees for their efforts under 42 U.S.C. § 1988. They prevailed in the district court, and the same panel of judges on the Sixth Circuit affirmed that decision last week as well.