A path may be opening up to once again bring the issue of same-sex marriage before the U.S. Supreme Court.
The legal trail began in the U.S. District Court of Eastern Kentucky in the case of Ermold v. Davis, when Judge David Bunning assigned a jury the task of determining the amount of monetary damages a same-sex couple should be awarded because a Rowan County clerk refused, on religious grounds, to sign their marriage license.
Then-clerk Kim Davis’ refusal occurred in 2015, shortly after the U.S. Supreme Court’s decision declaring same-sex marriage a constitutional right in Obergefell v. Hodges.
The high court also ruled at the time that a same-sex marriage from one state must be recognized as legal by all states.
In September 2023, a jury awarded $50,000 in damages to each plaintiff in the 2015 Kentucky case, and Judge Bunning awarded the couple an additional $246,000 in attorney’s fees and $14,000 for expenses.
Legal and Constitutional Issues Raised
In a Jan. 2, 2024, press release, Liberty Counsel, a conservative Christian legal foundation representing Ms. Davis, stated that the jury verdict in Ermold v. Davis is “unsound and easily sets this case up for an eventual route to the U.S. Supreme Court,” and that “giving the case to the jury was impermissible, and that makes the verdict for damages reversible error, in addition to the constitutional issues.”
Liberty Counsel asserted that “the evidence presented at trial simply does not support that verdict because there were no lost wages, and they presented no supporting testimony regarding emotional injury.”
Such proof is required by the Federal Rules of Civil Procedure, which prohibit a judge from giving the case to a jury when evidence presented at trial is insufficient to warrant cash damages, according to Liberty Counsel.
The first step on the road to the Supreme Court will begin in a few weeks with a request from Liberty Counsel that Judge Bunning reverse the jury’s verdict because there was not enough evidence to award the plaintiffs monetary damages.
If the motion to reverse is denied by the court, the next stop is the 6th U.S. Circuit Court of Appeals and, possibly, beyond that to the U.S. Supreme Court.
According to Liberty Counsel, some prior 6th Circuit decisions make clear that the “mere testimony” of plaintiffs claiming a defendant’s action caused embarrassment and hurt their feelings “cannot suffice to merit a damages award,” without documented evidence of harm done.
Despite their seemingly good prospects in the 6th Circuit Court of Appeals, it is before the U.S. Supreme Court that Liberty Counsel attorneys hope to argue the greater issue of the religious liberty of Ms. Davis and others.
A win in the Supreme Court would correct the errors that Liberty Counsel contends were made by Judge Bunning, reverse the jury’s verdict, and nullify the monetary damages awarded to the plaintiffs.
Religious Discrimination?
At the original trial of Ermold v. Davis, Judge Bunning overruled the objection of the defense and allowed questioning that enabled plaintiffs’ lawyers to exclude from the jury anyone who had “religious beliefs and those who had objections to ‘same-sex marriage,’” according to Liberty Counsel.“That question essentially excluded jurors based on religion, which is unlawful under current legal precedent and federal law,” the Liberty Counsel statement said.
In December 2015, newly elected Republican Gov. Matt Bevin, prompted by the lawsuit against Ms. Davis, issued an executive order granting a religious accommodation to all Kentucky clerks. The governor’s order was followed by the state Legislature voting unanimously to grant religious and conscience accommodations to all clerks over the refusal to issue marriage licenses to same-sex couples.
Initially, Ms. Davis was not covered by the above actions because the case against her was filed before their implementation. Eventually, she requested and received a religious accommodation for future situations.
However, Liberty Counsel contends that Ms. Davis was covered all along by the protections of both existing Kentucky law and the First Amendment to the U.S. Constitution.
“This case is far from over,” said Mat Staver, Liberty Counsel founder and chairman, in a statement. “This case has the potential to extend the same religious freedom protections beyond Kentucky and to overturn Obergefell v. Hodges, which was wrongly decided and should be overturned.”
Later, when asked by The Epoch Times why the Supreme Court should overturn Obergefell v. Hodges, Mr. Staver called the narrow 5–4 decision an example of the “flawed judicial activist philosophy” that negates “millennia of human understanding and behavior.”
The definition of marriage as a union between a man and a woman was upheld by court decisions, affirmed by referendums, and codified into statutes and constitutional amendments in many states prior to the high court’s 2015 decision, he said.
“That Supreme Court opinion has no basis in the Constitution and was built on the same shifting legal sand as Roe v Wade. Obergefell v. Hodges passed by a slim majority with strong dissents. The odds are high that this case could be overturned,” Mr. Staver said.
He added that the current Supreme Court has demonstrated a willingness to weather a storm of protests and social upheaval when important constitutional issues are at stake, as was seen by its striking down Roe v. Wade, which had been “settled law” for nearly 50 years.
