The Volokh Conspiracy
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Sixth Circuit Rejects Qualified Immunity for Kim Davis for a Third Time
The message that public officials are required to follow the law, even if they disagree with it, does not seem to have gotten through.
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., dissenting).
But right or wrong, the fact remains that we all must follow Obergefell, the law of the land. That includes Kim Davis, in her role as Rowan County Clerk. Accordingly, I agree that we should affirm the judgment against Davis. I write separately to emphasize two points with respect to Davis's claimed defenses under the First Amendment and Kentucky's Religious Freedom Restoration Act.
A. The First Amendment. Davis contends that, in her role as a county employee, the First Amendment's free exercise protections provide her an affirmative defense against a § 1983 claim. As it relates to the public workplace, First Amendment jurisprudence can be difficult to distill. The case law backdrop is not entirely settled. And the varying contexts in which these cases arise can make analogizing a difficult endeavor.
Begin with what we know. Public employees retain some First Amendment rights. In the traditional free speech setting, it is well established that when acting "pursuant to their official duties . . . employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications." Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). When speaking on matters of public concern, on the other hand, the First Amendment is more directly implicated. Id. at 417. In such cases, courts engage in a delicate balancing, asking whether an employee's speech interests are outweighed by "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. of Ed., 391 U.S. 563, 568 (1968).
Today's case, however, involves free exercise aspects of the First Amendment. See, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421–23 (2022) (applying the First Amendment's Free Exercise Clause to a public employee in a suit against a school district). And the exact bounds of that right in the public workplace are even less defined, making it difficult to speak in absolutes. See id. at 2433 (Thomas, J., concurring) (observing that the Court has not decided "whether or how public employees' rights under the Free Exercise Clause may or may not be different from those enjoyed by the general public"). But it seems fair to say that, at least under current law, those protections are likely diminished in the setting here—a religiously neutral job requirement to issue marriage licenses imposed upon a public employee's core job functions. Cf. Emp. Div. v. Smith, 494 U.S. 872, 879 (1990) ("[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability." (citations omitted)). Contra Kennedy, 142 S. Ct. at 2421–22 (holding that a school district's policy toward employee prayer violated the Free Exercise Clause because it was neither neutral nor generally applicable).
To the extent that the First Amendment offered Davis some shield from liability, her conduct here exceeded the scope of any personal right. As Judge Bush recognized in a prior iteration of this case, Davis "t[ook] the law into her own hands." Ermold v. Davis, 936 F.3d 429, 442 (6th Cir. 2019) (Bush, J., concurring in part and in the judgment). And she did so in the most extreme way. Rather than attempting to invoke a religious exemption for herself, Davis instead exercised the full authority of the Rowan County Clerk's office to enact an official policy of denying marriage licenses to same-sex couples, one every office employee had to follow. Under this unique set of facts, I agree that the First Amendment does not shield Davis from liability.
I would rest our analysis there. As the majority opinion notes, whether the First Amendment can provide an affirmative defense to a § 1983 claim "appears to be an issue of first impression." Maj. Op. at 11. Writing on this blank slate, we are wise to tread lightly. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 596 (1952) (Frankfurter, J., concurring) ("It is no less incumbent upon this Court to avoid putting fetters upon the future by needless pronouncements today."). To that end, the fact-specific nature of our holding again bears emphasis: a government employee, acting in the scope of that employment, does not have a unilateral free exercise right to use an arm of the state to infringe on a clearly established equal protection right of the public. Change the factual setting, and a free exercise defense to a civil rights lawsuit may have more traction. It is always the case that "[a] later court assessing a past decision must . . . appreciate the possibility that different facts and different legal arguments may dictate a different outcome." Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2281 (2024) (Gorsuch, J., concurring); see also Advisory Opinions, Did Hunter Biden Get a Sweetheart Deal . . . ?, The Dispatch, at 1:26 (June 20, 2023), https://thedispatch.com /podcast/advisoryopinions/did-hunter-biden-get-a-sweetheart-deal ("Other cases presenting different allegations and different records may lead to different conclusions." (quoting Twitter, Inc. v. Taamneh, 143 S. Ct. 1206, 1231 (2023) (Jackson, J., concurring))). Especially so, it bears emphasizing, in the evolving field of religious liberties. See, e.g., Carson v. Makin, 142 S. Ct. 1987 (2022); Tandon v. Newsom, 141 S. Ct. 1294 (2021) (per curiam); Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021); Obergefell, 576 U.S. at 711 (Roberts, C.J., dissenting) (observing that the majority opinion raises "serious questions about religious liberty"). Today's holding should thus be read in this same light.
B. The Kentucky Religious Freedom Restoration Act. Turn next to Davis's claim that Kentucky's Religious Freedom Restoration Act also shields her from liability under § 1983. The majority opinion concludes that Kentucky's RFRA does not apply here because the state is not a party in this litigation. That conclusion seemingly presupposes that a state law, under the right circumstances, may provide a defense in § 1983 litigation. While I agree that Kentucky's RFRA does not afford Davis any protection, I take a different route to that conclusion.
Kentucky's RFRA, codified at Kentucky Revised Statutes § 446.350, is a state law. State law cannot immunize officials from a § 1983 claim, which serves to vindicate federal rights. 42 U.S.C. § 1983; Williams v. Reed, No. 23-191, 604 U.S. ––––, 2025 WL 567335, at *4 (Feb. 21, 2025) ("States possess no authority to override Congress's decision to subject state officials to liability for violations of federal rights." (quotation marks and citation omitted)); Brown v. Taylor, 677 F. App'x 924, 930 n.4 (5th Cir. 2017) (rejecting an official's claim of immunity under the Texas Health and Safety Code); Walker v. Norris, 917 F.2d 1449, 1458 n.14 (6th Cir. 1990) (noting a state law cannot provide immunity with respect to a § 1983 claim). Simply put, "[c]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 . . . cannot be immunized by state law." Martinez v. California, 444 U.S. 277, 284 n.8 (1980) (citation omitted). Construing a "federal statute [to] permit[] a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced." Id. Davis may not thwart this clear principle of law. On that basis, I concur in the majority opinion's conclusion that Davis's Kentucky RFRA defense fails.
