LEXINGTON, Ky. — Lawyers for former Rowan County Clerk Kim Davis, who garnered national attention nearly a decade ago when she refused to issue marriage licenses to gay couples, argued that Davis’ court-ordered payment to a couple to whom she denied a license should be tossed.

Davis’ lawyers say she is not liable to pay more than $360,000 in damages for the legal fees and emotional distress she caused a gay couple by denying them a marriage license in 2015 because, acting in her role as a government employee, she had sovereign and qualified immunity.

The controversial concept of qualified immunity essentially protects public officials from being held legally accountable or liable for actions that may violate state or federal laws.

“Could they get injunctive relief against her in a personal capacity? Absolutely. (But) they are coming after Kim Davis outside of her governmental ability,” Mat Staver, founder and chairman of the Christian-based Liberty Counsel, which is representing Davis, told U.S. Circuit Court of Appeals Judges Helene White, Chad Readler and Andre Mathis in oral arguments Thursday.

But Judge White insisted Davis was a “government actor” at the time, she has just since “lost her immunity.”

Staver countered that First Amendment protections apply to her now as a private citizen, so she still should not have to pay.

Under the First Amendment, “What is the protected speech here?” White asked Staver.

“Actions motivated by a religious freedom exercise on a public concern regarding same-sex marriage,” Staver said. “She was a state actor, and that’s where she had sovereign immunity originally, but then they stripped her of qualified immunity and came after her in her individual capacity. In that case, she has protection under the First Amendment.”

“To Judge White’s point, we started this case with a government employee,” Readler retorted. “It’s odd to say then, well if we lose on that, then they become a private individual and now they get the benefit of the First Amendment.”

Bill Powell, a lawyer for the couple, David Ermold and David Moore, argued that Davis lost her right to qualified immunity when she violated the couple’s Fourteenth Amendment rights.

Moreover, “when a government official acts under color of state law, they do not have that kind of First Amendment protection,” he said.

Davis became a national figure in 2015 when she refused to sign her name to or issue marriage licenses to gay couples after the U.S. Supreme Court upheld Obergefell v. Hodges, legalizing same-sex marriage nationally. Davis argued that issuing licenses were counter to her beliefs as an evangelical Christian.

She was briefly jailed for contempt of court, and later, in 2018, lost a reelection bid.

One of the couples who was denied a marriage license won a lawsuit against Davis, and a federal judge last year upheld the $100,000 in damages — $50,000 to Ermold and $50,000 to Moore.

This is the third time Davis has appealed her case to the 6th Circuit, Powell said.

Powell pushed back against the notion that Davis has qualified immunity or First Amendment protections that shield her from paying damages.

In previous rulings, it was established that Davis “violated the Fourteenth Amendment rights of the plaintiffs to marry when she denied them a marriage license in defiance of the Supreme Court’s decision in Obergefell,” Powell said. “And it is the law of this case that their Fourteenth Amendment rights were clearly established at the time of the denial, such that Ms. Davis is not entitled to qualified immunity.”

Even if Davis’ attorneys did effectively argue that Davis’ actions were protected under the First Amendment during her time as county clerk, “it would have to be for speech she took in her private capacity outside of her official duties,” Powell said. “That is not what happened here. She denied this marriage license as the core of her public duty as a county clerk.”

In a separate news release Thursday, Staver argued that Obergefell should be overturned in its entirety “because that decision threatens the religious liberty of many Americans who believe that marriage is a sacred institution between one man and one woman,” Staver said in a separate news release.

History of the case

Davis rose to international prominence a decade ago for refusing to issue marriage licenses to same-sex couples in her Eastern Kentucky county after gay marriage became legal under the high court’s ruling.

She was staunch in her refusal to carry out the sworn duties of her public position — her office temporarily stopped issuing any marriage licenses so Davis’ name did not have to appear on licenses for gay couples.

Many conservative Christian groups and leaders, including former Arkansas Republican Gov. Mike Huckabee, lauded Davis as a symbol of resistance against a federal law that they said infringed on religious freedom, a position her lawyers continued to take on Thursday.

Davis “was entitled to a reasonable accommodation for her sincere religious convictions under the First Amendment and Kentucky’s Religious Freedom Restoration Act,” her lawyers wrote in a 73-page brief last July. “The government’s refusal to timely grant such an accommodation impermissibly infringed her religious exercise.”

In 2016, after a judge dismissed an initial spate of lawsuits, Ermold and Moore, who were initially denied a marriage license by Davis’ office three times, sued the former clerk.

A jury verdict in 2023 ordered Davis to pay $100,000 to Ermold and Moore, and a separate judgment required her to pay more than $260,000 to cover the cost of the couple’s legal fees — judgments that were upheld by U.S. District Judge David L. Bunning in April 2024.

Davis appealed Bunning’s ruling last July, which is how her case landed before the appellate court on Thursday.

Staver told the three-judge panel that the reason the $100,000 in damages were awarded to Ermold and Moore — for emotional distress — has never been substantiated and isn’t a reason to award damages.

He said there was never presented proof of “injury, no lost wages, it’s only based on their hurt feelings that occurred when they went to the clerk’s building to get the license and Kim Davis’ words caused them distress.”

White responded, “My understanding is that emotional distress damages are compensatory. They compensate for your emotional distress.”

Mathis added, “Your client said they were ‘upset,’ and things of that nature at the trial.”

When Davis first appealed the damages, Powell wrote in a court filing that the jury’s award was reasonable “based on extensive testimony from (the couple) documenting the profound pain they experienced when Davis denied their right to marry and belittled and demeaned their relationship.

“Indeed, Davis herself testified that she observed the distress she caused the plaintiffs, confirming their testimony.”

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