Taxpayers on hook for Kentucky clerk Kim Davis' fight against gay marriage

Correction: An earlier version of this story stated that Rowan County would have to pay the attorneys' fees. The state of Kentucky has been ordered to pay. 

In a victory for same-sex couples denied marriage licenses by Rowan County Clerk Kim Davis, a federal judge Friday awarded $222,695 in fees to their attorneys.

The ACLU of Kentucky hailed the ruling, saying it should serve as a reminder to public officials in Kentucky of the cost of violating civil liberties.

“It is unfortunate that Kentucky taxpayers will likely bear the financial burden of the unlawful actions and litigation strategies of an elected official,but those same voters are free to take that information into account at the ballot box.” William Sharp, the ACLU’s legal director, said in a statement.

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U.S. District Judge David Bunning ordered the state to pay the fees, rather than Davis or Rowan County.

He said Davis was protected because she was acting in her official capacity when she stopped issuing marriage licenses in 2015 on religious grounds after the Supreme Court held gay marriage is a fundamental right. He said the state rather than the county was liable because the state is primarily responsible for regulating marriage.  

In a 50-page ruling, Bunning said he was awarding the fees under a federal law that allows them to be granted to the prevailing party in civil rights cases. He overruled a magistrate judge who had denied the money because he said the plaintiffs hadn’t really prevailed.

Mat Staver, chairman and founder of Liberty Counsel, which represented Davis, had argued the plaintiffs didn’t really win because eventually the General Assembly passed a law providing the religious liberty accommodation that Davis sought — removing the names of clerks from marriage license forms. He said that made the lawsuit moot.  

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Bunning, however, found that the plaintiffs got what they wanted — an injunction requiring her office to begin issuing licenses again.

“Plaintiffs won the war,” Bunning said.

In a statement, Staver said he was pleased that Davis wasn’t held personally liable but disappointed with Bunning’s finding that the plaintiffs prevailed.

He predicted that the state would appeal, but Woody Maglinger, a spokesman for Gov. Matt Bevin, said the state’s outside counsel was still studying the ruling and that no decision has been made whether to try to reverse it. 

Davis became a national lightning rod when just hours after the Supreme Court’s gay marriage ruling on June 26, 2015, she decided her office would no longer issue marriage licenses to any couples, same-sex or otherwise.

Four days later, when April Miller and Karen Roberts, who had been in a committed relationship for 11 years, went to Davis’ office to get a license, their request was denied. Two opposite-sex couples — Kevin Holloway and Jody Fernandez and Shantel Burke and Stephen Napier — as well as another same-sex couple — Barry Spartman and Aaron Skaggs — also were turned down.

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They and others sued, while Davis filed a claim alleging the state of Kentucky and then-Gov. Steve Beshear deprived her rights by requiring her to issue licenses with her name on them. 

In August 2015, Bunning issued a preliminary injunction ordering Davis to comply with the law. A federal appeals court and the Supreme Court declined to stay it, and when she continued to refuse to comply he ordered her jailed for contempt of court. 

Five days later, the plaintiffs reported that the office had granted them licenses and Bunning ordered Davis to be released. 

In December that year, after his election, Bevin issued an executive order removing the names of clerks from marriage licenses to “ensure that the sincerely held religious beliefs of all Kentuckians are honored.” The legislature later passed a bill made that change permanent.

Bunning's order included fees to four Louisville attorneys — Sharp, Daniel Canon, Laura Landenwich and L. Joe Dunman. The court also ordered the state to pay $2,008 in costs.

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Davis was out of her office Friday and didn't reply to an email seeking comment, but Staver said taxpayers should blame former Gov. Beshear, not her, for the costs. Staver said the litigation could have been avoided if Beshear had accommodated Davis’ religious beliefs as Bevin later did.

Beshear maintained that the state's 120 county clerks were required to obey the law and the Supreme Court’s ruling.

"Neither your oath nor the Supreme Court dictates what you must believe,” he wrote to them. “But as elected officials, they do prescribe how we must act.”

Reporter Andrew Wolfson can be reached at 502-582-7189 or awolfson@courier-journal.com.