Supreme Court turns down KY clerk second time over same-sex marriage

On November 10, the U.S. Supreme Court rejected an appeal from a Kentucky clerk who was fined $100,000 for refusing to issue a marriage license to a gay couple.

The Court made no statement to explain why it was not taking the case, and no justice proffered a dissent. It takes at least four justices to agree to hear a petition before the full bench take up the matter.

The petition by Rowan County clerk Kim Davis, 60, was a long shot, and Davis had tried before to petition the Supreme Court to reverse a lower court decision.

The thrust of this petition was to seek a declaration from the Supreme Court that the county —not Davis— should be required to pay the $100,000 levied against Davis for refusing to issue the marriage license to David Ermold and David Moore.

In addition to the fine, Davis was jailed briefly for several days for refusing to issue marriage licenses to same-sex couples. She also accrued $250,000 in attorneys' fees. The primary issue of her petition to the Supreme Court was her argument that, as county clerk, she had qualified
immunity for actions she took as a public official.

Tacked onto that petition was a question asking the Supreme Court to overturn its decision in Obergefell v. Hodges. Obergefell is the 2015 decision in which the court ruled 5 to 4 to that states could not ban same-sex couples from obtaining marriage licenses.

Attorneys for the gay couple urged the Supreme Court to deny Davis's petition. Among other things, they noted that "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."

The couple filed a lawsuit against Davis for refusing their application for a marriage license. In response to the latest petition to the Supreme court, the couple's attorneys noted that the Sixth Circuit U.S. Court of Appeals held that in "the absence of any legal authority to support her novel arguments," Davis "should have known that Obergefell required her to issue marriage licenses to same-sex couples —even if she sought and eventually received an accommodation." 

Only two entities filed friend-of-the-court briefs in the petition this time around: one from a Long Beach, California, attorney who said he represented clients who said they had "suffered greatly" from having had same-sex parents. The other was from the National Organization for Marriage, which opposes allowing same-sex couples to obtain marriage licenses. NOM's brief said the Supreme Court should overturn Obergefell because the gay couple could have gone to another clerk to obtain the marriage license, rather than force Davis —who claimed religious beliefs against homosexuality— to issue it.

Jenny Pizer, Senior Director of Strategic Initiatives at Lambda Legal, had predicted the Court would not take the petition, noting that the Trump administration has not been intensely focused on marriage licenses.

Davis ran for re-election in 2018 but lost.

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