LGBTQ Equality

How the Shadow Network plans to use Kim Davis’ case to gut marriage equality nationwide

  Rob Boston

There’s a new twist to the saga of Kim Davis, the former Rowan County, Ky., clerk who became a Christian Nationalist celebrity after she refused to issue marriage licenses to same-sex couples: Her lawyers announced they plan to use her case as a vehicle to get marriage equality before the Supreme Court, with hopes that the court’s current ultra-conservative majority will roll back LGBTQ+ rights.

A federal judge ruled last week that Davis must pay $260,000 in attorneys’ fees and other costs to the lawyers who represented a couple that sued her. This follows a decision by a jury last year that Davis must pay $100,000 to the same couple.

Davis was serving as chief clerk of Rowan County in 2015 when the U.S. Supreme Court ruled in Obergefell v. Hodges that denying same-sex couples the right to marry violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The decision had the effect of extending marriage equality nationwide.

Davis defies Supreme Court

But Davis refused to abide by the decision, citing her personal religious objections to marriage for LGBTQ+ people. Not only did she refuse to issue marriage licenses to same-sex couples, she ordered her subordinates to deny them as well. (One of her employees eventually defied her and began issuing the licenses.)

Two couples sued. In 2018, voters removed Davis from office, but the litigation continued. In 2022, U.S. District Judge David L. Bunning ruled that Davis did not have the right to refuse service to the couples and that she had violated their rights. Their attorneys then sought to recover attorneys’ fees, a common practice in this type of litigation.

Bunning held that the $260,000 figure is reasonable, ruling that the attorneys are entitled to “a fully compensatory fee” for their services.

Davis’ attorneys at the Christian Nationalist group Liberty Counsel, a member of the Shadow Network working to undermine church-state separation, aren’t pleased. Mathew Staver, chairman of Liberty Counsel, has vowed to see the judgment overturned.

Christian Nationalist goal: negating marriage equality

But Staver has even bigger goals in mind: He wants to use Davis’ case to overturn Obergefell.

“On appeal, we will not only request the jury verdict be set aside due to lack of evidence to support a damages claim, we will also argue Kim Davis is protected by the First Amendment Freedom of Religion Clause,” Staver said in a media statement. “And we will argue that the 2015 case of Obergefell v. Hodges should be overruled. Only two of the original five justices remain on the bench. Chief Justice John Roberts filed a strong dissent to the case, along with Thomas and Alito. Obergefell is on very thin ice and lacks any legal precedent or foundation.”

Would the high court use a case like this to toss out Obergefell? It seems like a reach, but with the court being this radical, we shouldn’t assume it could never happen. If nothing else, Staver’s statement is a reminder that Christian Nationalists are still itching to see Obergefell fall. If Davis’ case isn’t the right vehicle, they’ll likely cook up another.

As for Davis, it’s unclear if she’ll ever actually pay a dime. If Bunning’s ruling is upheld, Christian Nationalist groups will likely pony up the money or raise it through crowd funding.

The judgment of history

But one thing is clear: The judgment of history won’t be kind to Davis. Remember the people who fought tooth and nail to deny Black Americans their rights during the Civil Rights era? Remember the Bull Connors, the George Wallaces and the Theodore G. Bilbos?

Today we don’t fondly recall those people as heroes; we remember them as bigoted extremists who stood against basic human rights, and we consider their actions a cause for shame.

Davis is headed for a similar fate.

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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