A federal appeals court has ruled that former Rowan County Clerk Kim Davis can face lawsuits from two couples who sued her for failing to issue marriage licenses.

In a 3-0 decision last Friday, the 6th U.S. Circuit Court of Appeals in Cincinnati said Davis can be sued in her individual capacity, though sovereign immunity shielded her from being sued in her former role as Rowan County Clerk.

In 2015, Davis refused to issue marriage licenses to same-sex couples after the legalization of same-sex marriage. This led to several lawsuits and a short stint of jail time for Davis.

Two of the couples who sued her -- David Ermold and David Moore; and Will Smith and James Yates -- challenged Davis' claims of immunity based on her role as clerk.

In an argument that referred repeatedly to the landmark U.S Supreme Court decision Obergefell v. Hodges, the ruling by the appeals court said the rights of same-sex couples was established. It also noted its decision was not a ruling on whether the couples' rights had been violated but more narrowly that the allegation is reasonable and whether Davis is potentially liable.

“So we ask not whether Davis definitively violated plaintiffs’ rights but whether they adequately allege that she did,” the ruling states.

But the appeals court called the Supreme Court decision “as sweeping as it was unequivocal,” and said the respective couples could try to show that Davis acted unreasonably.

“In short, plaintiffs pleaded a violation of their right to marry: a right the Supreme Court clearly established in Obergefell,” Circuit Judge Richard Griffin wrote. “The district court therefore correctly denied qualified immunity to Davis.”

The decision upheld rulings by U.S. District Judge David Bunning in Covington, Kentucky and returned the lawsuits to him.

The court also upheld a lower court ruling awarding $224,000 in attorney’s fees and costs in the case of couples who were refused marriage licenses by Davis.

The panel and lower court agreed that the Commonwealth of Kentucky is responsible for paying the award.

Davis lost her reelection bid as Rowan County clerk last year. She is now retired, according to Mat Staver, the founder of Liberty Counsel, which represented her.

“At the end of the day, she will ultimately prevail. She had no hostility to anyone, given that she stopped issuing all marriage licenses,” Staver said in an interview.

“The broader issue is what accommodation a court should provide someone based on their religious beliefs,” he added. “It’s a matter of time before such a case goes squarely before the Supreme Court.”

Michael Gartland, a lawyer for Ermold and Moore, told the media that his clients may ask the full 6th Circuit to review the sovereign immunity issue.

“No matter what happens, we’re going to trial against Ms. Davis in her individual capacity,” Gartland said.

Kash Stilz, a lawyer for Smith and Yates, said his clients were pleased their lawsuit can continue.

Brad Stacy can be reached at bstacy@themoreheadnews.com or by telephone at 784-4116.

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