After former Rowan County, Kentucky Clerk Kim Davis lost the legal battle over her refusal to issue marriage licenses to gay couples, a judge ordered the state of Kentucky to pay the couples’ legal fees. But on Thursday, lawyers for Kentucky’s governor will argue in court that Davis should foot the bill, not the state.
Davis’ 2015 refusal to recognize same-sex marriages, even after the Supreme Court legalized them at the national level, became a cause célèbre for anti-gay marriage politicians like Mike Huckabee, Roy Moore and, as it happens, then-Kentucky gubernatorial candidate Matt Bevin.
“I absolutely support her willingness to stand on her First Amendment rights,” Bevin said in September 2015, one of several statements supporting Davis. “Without any question I support her.”
Was honored to have Kim Davis and her husband ask for me to visit them in the Carter County jail today… #WeAreKY pic.twitter.com/VKyXQgEap1
— Matt Bevin (@MattBevin) September 8, 2015
In a legal filing last in May of last year, lawyers representing the governor and State Librarian Terry Manuel took a decidedly different tone.
“When Rowan County Clerk Kim Davis … created her own local policy to deny the issuance of any marriage licenses in Rowan County, Kentucky, she acted pursuant to her discretionary authority as an elected officer of Rowan County,” the filing reads. “Her local policy defied the unequivocal mandate issued by the Supreme Court in Obergefell v. Hodges … and her local policy stood in direct conflict with her statutory obligation to issue marriage licenses to qualified Kentucky couples.”
“The local policy also undermined the Commonwealth of Kentucky’s interest in upholding the rule of law. As a result, the Commonwealth cannot bear liability for any attorneys’ fees related to challenges to the legality of this local policy.”
A three-judge panel will hear oral arguments on the matter Thursday afternoon. Davis lost her reelection bid in November. The couples whose rights were violated are owed nearly $225,000 in legal fees, according to the Lexington Herald-Leader.
Per the Herald-Leader, District Judge David Bunning initially saddled the state with the legal fees because Davis’ marriage license authority came from the state in the first place. Because the state didn’t act to prevent Davis’ lawlessness, the logic goes, it’s responsible for paying the bill.
“Davis represented the Commonwealth of Kentucky when she refused to issue marriage licenses to legally eligible couples. The buck stops there,” Bunning wrote, the Herald-Leader noted last year.
That ruling came in July 2017. On Thursday, Bevin and Manuel’s lawyers will argue before the 6th Circuit Court of Appeals that the Rowan County clerk’s office is responsible for its then-clerk’s actions. Attorneys for Davis will argue that she was acting on behalf of the state.
