Ermold et al v. Davis et al
MEMORANDUM OPINION & ORDER, 1) Defendant 29 MOTION to Dismiss by Kim Davis, Amended Complaint is granted in part , as to Plaintiff's claims against Kim Davis in her official capacity and denied in part as to Pla intiff's claims against Kim Davis in her personal capacity 2) Plaintiff's Amended Complaint 27 is dismissed with respect to Plaintiff's claims against Kim Davis in her official capacity .. Signed by Judge David L. Bunning on 9/15/17.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 15-46-DLB-EBA
DAVID ERMOLD, et al.
MEMORANDUM OPINION AND ORDER
KIM DAVIS, individually and
in her official capacity
This matter is before the Court on Defendant Kim Davis’s Motion to Dismiss
Plaintiffs David Ermold and David Moore’s Amended Complaint. (Doc. # 29). Plaintiffs
having filed their Response (Doc. # 31), and Defendant having filed her Reply (Doc. #
37), the Motion is fully briefed and ripe for review. For the reasons stated herein,
Defendant’s Motion to Dismiss will be granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
Since August of 2015, three cases against Defendant Kim Davis have been
pending on this Court’s docket: (1) Miller, et al. v. Davis, et al, 0:15-cv-44-DLB-EBA; (2)
Ermold, et al. v. Davis, et al., 0:15-cv-46-DLB-EBA; and (3) Yates, et al. v. Davis, et al.,
0:15-cv-62-DLB-EBA.1 Each of these cases arose from the same circumstances—Kim
Davis’s refusal to issue marriage licenses to legally eligible couples. Factually, however,
The Miller Plaintiffs filed their suit against Kim Davis first, on July 2, 2015. Seven days
later, on July 10, 2015, the Ermold Plaintiffs brought another action against Davis. And by August
25, 2015, the Yates Plaintiffs had filed a third suit against Davis.
the cases differ in significant ways. The first of these—the Miller case—is not like the
others; the last two—the Ermold and Yates cases—are nearly identical.2
In Miller, the Plaintiffs sought prospective injunctive relief, which this Court granted.
Specifically, the Court enjoined Davis from enforcing her “no marriage licenses” policy.
Miller, 0:15-cv-44-DLB-EBA (Docs. # 43 and 74 therein). Thereafter, the Court held that
the Miller Plaintiffs “prevailed” against Davis, in her official capacity, when they obtained
a preliminary injunction forcing her to issue marriage licenses. Id. (Doc. # 206 therein).
Accordingly, the Court recently awarded the Miller Plaintiffs attorneys’ fees and costs
under 42 U.S.C. § 1988 and ordered the Commonwealth of Kentucky, which Davis
represented in her official capacity, to foot the bill.3 Id.
In contrast to the Miller Plaintiffs, the Ermold and Yates Plaintiffs do not pursue
prospective injunctive relief. Instead, they seek retrospective money damages. And in
suits against government officials, the type of relief requested makes all the difference.
Therefore, this case, and the companion case, Yates, et al. v. Davis, et al., will chart their
On June 26, 2015, the United States Supreme Court held that the fundamental
right to marry extended to same-sex couples, and therefore, states are constitutionally
required to recognize same-sex marriage. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
At that time, Plaintiffs David Ermold and David Moore had been in a committed same-sex
Save an additional defendant, Rowan County, in the Yates matter.
As this Court explained in the July 21, 2017 Memorandum Opinion and Order in Miller,
although attorneys’ fees and costs may bear resemblance to monetary relief, they are not money
damages. Miller, 0:15-cv-44-DLB-EBA (Doc. # 206 therein). “Unlike ordinary ‘retroactive’ relief,
such as damages or restitution, an award of costs does not compensate the plaintiff for the injury
that first brought him into court.” Hutto v. Finney, 437 U.S. 678, 695 n.24 (1978). “Instead, the
award reimburses him for a portion of the expenses he incurred in seeking prospective relief.” Id.
relationship for seventeen years. (Doc. # 1 at ¶ 6). Ten days later—on July 6, 2015—
Plaintiffs went to the Rowan County Clerk’s Office and requested a marriage license.
(Doc. # 27 at ¶ 19). The couple’s request was denied and they were informed of Rowan
County Clerk Kim Davis’s “no marriage licenses” policy. Id. at ¶ 23. By the end of that
week, Plaintiffs filed the instant action against Davis in her individual and official
capacities. (Doc. # 1).
On August 12, 2015, this Court granted the Miller Plaintiffs’ Motion for Preliminary
Injunction and enjoined Davis from enforcing her “no marriage licenses” policy to future
marriage-license requests by those Plaintiffs. Miller, 0:15-cv-44-DLB-EBA (Doc. # 43
therein). Davis unsuccessfully appealed that ruling to the United States Court of Appeals
for the Sixth Circuit and to the United States Supreme Court. Miller v. Davis, No. 155880, 2015 WL 10692640 (6th Cir. Aug. 26, 2015); Davis v. Miller, 136 S. Ct. 23 (2015).
Despite this Court’s directive and her failed appeals, Davis refused to comply with the
Miller, 0:15-cv-44-DLB-EBA (Doc. # 67 therein).
In the meantime,
Plaintiffs Ermold and Moore’s marriage-license requests were denied a second and third
time—on August 13, 2015, and September 1, 2015. (Doc. # 27 at ¶¶ 24-25).
On September 3, 2015, the Court found Davis in contempt of the Court’s Order
and remanded her to the custody of the United States Marshal, pending compliance. Id.
(Doc. # 75 therein). That same day, the Court modified the preliminary injunction and
clarified that Davis, in her official capacity as Rowan County Clerk, was “preliminarily
enjoined from applying her ‘no marriage licenses’ policy to future marriage license
requests … by [any] individuals who [were] legally eligible to marry in Kentucky.” Id. (Doc.
# 74 therein).
The next day—September 4, 2015—Plaintiffs received a marriage license from the
Rowan County Clerk’s Office. (Docs. # 27 at ¶ 26 and 27-2). And on September 26,
2015, the Plaintiffs were married in a ceremony. (Doc. # 27-3).
While multiple appeals from the Miller case were pending before the Sixth Circuit,
the briefing in this matter was stayed. (Doc. # 13). Before the Sixth Circuit resolved the
Miller appeals, the parties in that matter agreed that a legislative change had rendered
the consolidated appeals moot, and the Sixth Circuit dismissed those appeals. Miller,
0:15-cv-44-DLB-EBA (Doc. # 179 therein). In its July 13, 2016 Order, the Sixth Circuit
remanded the Miller matter to this Court, “with instructions to vacate” the August 12, 2015
and September 3, 2015 Preliminary Injunction Orders. Id. After the mandate issued, this
Court complied with the Sixth Circuit’s instructions and vacated the Preliminary Injunction
Orders, denied all pending motions as moot, and dismissed the Miller matter from the
Court’s active docket. Id. (Docs. # 180 and 181 therein). In that same Order, the Court
lifted the stay in this case, denied the pending motions as moot, and dismissed this matter
from the Court’s active docket.4 (Doc. # 19).
Plaintiffs appealed the Order dismissing this matter to the Sixth Circuit. (Doc. #
20). Because the Plaintiffs sought money damages, not an injunction, the Sixth Circuit
determined that the Plaintiffs’ money-damages claim was not moot, reversed the Order
dismissing Plaintiffs’ case, and remanded the action for further proceedings. Id. Once
the mandate issued (Doc. # 23), the Court held a telephonic conference, granted Plaintiffs
leave to file an amended complaint, and set a briefing schedule. (Doc. # 26). Now, the
Defendant has moved to dismiss all of Plaintiffs’ claims against her, arguing that she is
The stay in the Yates matter was also lifted, and that case was also dismissed from the
Court’s active docket. (Doc. # 19).
immune from Plaintiffs’ damages claims. (Doc. # 29).
Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Put another way, “the plaintiff must allege
facts that state a claim to relief that is plausible on its face and that, if accepted as true,
are sufficient to raise a right to relief above the speculative level.” Wesley v. Campbell,
779 F.3d 421, 427 (6th Cir. 2015) (quoting Handy-Clay v. City of Memphis, Tenn., 695
F.3d 531, 538 (6th Cir. 2012); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Although “Plaintiffs need not meet a ‘probability requirement’ … they must show
‘more than a sheer possibility that a defendant has acted unlawfully.’” Id. at 427-28
(quoting Rondigo, LLC v. Twp. of Richmond, 641 F.3d 673, 680 (6th Cir. 2011)). “In ruling
on the issue, a district court must ‘construe the complaint in the light most favorable to
the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of
the plaintiff.’” Id. at 428 (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).
After all, the “defendant has the burden of showing that the plaintiff has failed to state a
claim for relief.” Id.
To state a claim under 42 U.S.C. § 1983, Plaintiffs must allege that a person acting
under color of state law deprived them of a right secured by the Constitution or federal
law. See Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989). When a plaintiff seeks
to hold governmental officials liable under § 1983, the Court must first consider
immunities, which erect legal hurdles for claims against government entities and their
officials. Three variables dictate whether immunity bars these Plaintiffs’ suit: (1) the type
of government entity the official represents, (2) the nature of the relief requested, and (3)
the capacity in which the government official is sued.
First, Davis is a state official. As mentioned above, and discussed in detail in the
July 21, 2017 Memorandum Opinion and Order in Miller, Davis was acting as an agent of
the Commonwealth of Kentucky when she refused to issue marriage licenses to legally
eligible couples.5 Second, Plaintiffs are seeking to vindicate their constitutional rights by
obtaining money damages. And third, Plaintiffs have sued Davis in both her official
capacity and her personal capacity. “Personal-capacity suits seek to impose personal
liability upon a government official for actions … take[n] under color of state law.”
Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citing Scheuer v. Rhodes, 416 U.S. 232,
237-38 (1974)). “Official-capacity suits, in contrast, ‘generally represent only another way
of pleading an action against an entity of which an officer is an agent.’” Id. (quoting Monell
v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). Because different
immunities apply to Plaintiffs’ official-capacity and personal-capacity claims, the Court will
address each in turn.
Plaintiffs’ official-capacity claim against Davis must be
Plaintiffs’ official-capacity claim against Davis faces an insurmountable hurdle—
sovereign immunity. The Eleventh Amendment’s “[s]overeign immunity protects states,
In their briefing, Plaintiffs essentially ask the Court to reconsider its prior conclusion that
Davis represented the Commonwealth when she refused to issue marriage licenses. (Doc. # 31
at 3-15). The Court declines such an invitation. A consideration of the relevant factors compelled
the Court to conclude that county clerks, when issuing—or refusing to issue—marriage licenses,
represent the Commonwealth of Kentucky, not their respective counties.
as well as state officials sued in their official capacity for money damages, from suit in
federal court.” Boler v. Earley, 865 F.3d 391, 409-10 (6th Cir. 2017) (citing Ernst v. Rising,
427 F.3d 351, 358 (6th Cir. 2005)). Therefore, Plaintiffs’ money-damages claim against
Davis in her official capacity, which “is, in all respects other than name, to be treated as
a suit against the” Commonwealth, is barred by the Eleventh Amendment.6 Graham, 473
U.S. at 166. Accordingly, to the extent Plaintiffs seek money damages from Davis in her
official capacity, she is immune from such relief, and that claim must be dismissed for
failure to state a claim upon which relief can be granted. Barker v. Goodrich, 649 F.3d
428, 433 (6th Cir. 2011).
Plaintiffs’ personal-capacity claim against Davis will not be
Qualified immunity—although an obstacle to Plaintiffs’ personal-capacity claim
against Davis—can be overcome.
“The doctrine of qualified immunity protects
government officials ‘from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
“Qualified immunity balances two important
interests—the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability
when they perform their duties reasonably.” Id.
“Qualified immunity ‘gives ample room for mistaken judgments’ by protecting ‘all
but the plainly incompetent or those who knowingly violated the law.’”
Furthermore, “neither a State nor its officials acting in their official capacities are ‘persons’”
within the meaning of § 1983. Will, 491 U.S. at 71. Thus, Plaintiffs’ claims against Davis, in her
official capacity as a state official, are not cognizable.
Moseley, 790 F.3d 649, 653 (6th Cir. 2015) (quoting Hunter v. Bryant, 502 U.S. 224, 229
(1991) (per curiam)). And “[t]he protection of qualified immunity applies regardless of
whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake
based on mixed questions of law and fact.’” Pearson, 555 U.S. at 231.
There is a “two-tiered inquiry” for resolving claims of qualified immunity. Martin v.
City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013) (citing Austin v. Redford
Twp. Police Dep’t, 690 F.3d 490, 496 (6th Cir. 2012)). First, the Court must determine
whether “the facts alleged make out a violation of a constitutional right.”7 Id. If the plaintiff
has shown a violation of a constitutional right, then the Court must proceed to the second
step and “ask if the right at issue was ‘clearly established’ when the event occurred such
that a reasonable officer would have known that his conduct violated” the right. Id.
To survive a motion to dismiss on qualified-immunity grounds, both inquiries must
be resolved in Plaintiffs’ favor. See Wesley, 779 F.3d at 489. Plaintiffs bear “the burden
of showing that” Davis is “not entitled to qualified immunity.” Johnson, 790 F.3d at 653;
see also Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). “At the
pleading stage, this burden is carried by alleging facts plausibly making out a claim that
the defendant’s conduct violated a constitutional right that was clearly established law at
the time, such that a reasonable officer would have known that his conduct violated that
right.” Id. (citing Wesley, 779 F.3d at 428).
“Because qualified immunity is ‘an immunity from suit rather than a mere defense
to liability … it is effectively lost if a case is erroneously permitted to go to trial.’” Pearson,
The Court recognizes that the sequential procedure mandated in Saucier v. Katz, 533 U.S.
194 (2001) is no longer required. See Pearson, 555 U.S. at 227. However, as the Pearson Court
noted, that sequence is “often appropriate” and “beneficial,” and that is especially true in this case.
555 U.S. at 231 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Accordingly, the
Supreme Court has repeatedly “stressed the importance of resolving immunity questions
at the earliest possible stage in litigation.” Id. at 232 (citing Hunter, 502 U.S. at 227). The
Sixth Circuit, however, has clarified that only truly “insubstantial claims against
government officials should be resolved … prior to broad discovery,” Johnson, 790 F.3d
at 653, and has cautioned that “it is generally inappropriate for a district court to grant a
12(b)(6) motion to dismiss on the basis of qualified immunity.” Wesley, 779 F.3d at 433.
Thus, “[a]lthough an officer’s entitlement to qualified immunity is a threshold question to
be resolved at the earliest possible point, that point is usually summary judgment and not
dismissal under Rule 12.” Id. at 433-34 (internal citations and quotation marks omitted).
The facts alleged plausibly make out a violation of a
“It is undisputed that the right to marry is protected by … the Fourteenth
Amendment.”8 Toms v. Taft, 338 F.3d 519, 524 (6th Cir. 2003) (citing Zablocki v. Redhail,
434 U.S. 374, 383 (1978)). “The freedom to marry has long been recognized as one of
the vital personal rights essential to the orderly pursuit of happiness by free men.” Loving
v. Virginia, 388 U.S. 1, 12 (1967); see also Skinner v. Oklahoma ex rel. Williamson, 316
U.S. 535, 541 (1942). It is also undisputed that as of June 26, 2015, the fundamental
right to marry extended to same-sex couples. Obergefell, 135 S. Ct. at 2607-08 (“The
Court, in this decision, holds same-sex couples may exercise the fundamental right to
The right to marry is also an “associational right” under the First Amendment. Montgomery
v. Carr, 101 F.3d 1117, 1124 (6th Cir. 1996). Because “Supreme Court precedent … establishes
that the same level of scrutiny applies in both the First Amendment and [Fourteenth Amendment]
substantive due process contexts,” the “level of scrutiny to be applied to state action impinging on
the right to marry is invariant with respect to the precise constitutional provision undergirding that
right.” Id. Therefore, there is no reason for the Court to separately consider Plaintiffs’ claims
under the First Amendment.
marry in all States.”).
When governmental action interferes with the exercise of a fundamental right, like
the right to marry, the Court must “decide at what ‘level of scrutiny’ to evaluate the
challenged” policy. Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 710 (6th Cir.
2001). To determine the appropriate level of scrutiny, the Court must first consider
“whether the policy or action is a direct or substantial interference with the right of
marriage.” Montgomery v. Carr, 101 F.3d 1117, 1124 (6th Cir. 1996). Governmental
action places a “direct and substantial burden” on the right to marry “where a large portion
of those affected by the rule are absolutely or largely prevented from marrying, or where
those affected by the rule are absolutely or largely prevented from marrying a large portion
of the otherwise eligible population of spouses.”
Vaughn, 269 F.3d at 710 (citing
Montgomery, 101 F.3d at 1124-25; Zablocki, 434 U.S. at 387).
If the policy or action places a “direct and substantial burden” on the right to marry,
courts apply strict scrutiny. Montgomery, 101 F.3d at 1124. Under strict scrutiny, the
policy or action “cannot be upheld unless it is supported by sufficiently important state
interests and is closely tailored to effectuate only those interests.” Zablocki, 434 U.S. at
However, “not every state action, ‘which relates in any way to the incidents of or
the prerequisites for marriage must be subjected to rigorous scrutiny.’” Wright v.
MetroHealth Med. Ctr., 58 F.3d 1130, 1134 (6th Cir. 1995) (quoting Zablocki, 434 U.S. at
386). States may impose “reasonable regulations that do not significantly interfere with
decisions to enter into the marital relationship.” Id. at 1135. If the policy does not “directly
and substantially interfere with the fundamental right to marry,” courts will subject the
governmental action to a more lenient test—rational basis. Vaughn, 269 F.3d at 710.
Rational-basis review requires only that the challenged policy is “rationally related to
legitimate government interests.” Johnson v. Bredesen, 624 F.3d 742, 746 (6th Cir.
In their briefing, the parties suggest different standards of scrutiny. The Defendant
argues that the Court should apply rational-basis review to her “no marriage licenses”
policy because “Plaintiffs were neither absolutely nor largely prevented from marrying
whom they wanted under Kentucky law.” (Doc. # 29-1 at 31). Instead, the Defendant
contends that the Plaintiffs experienced a “mere inconvenience” at the Rowan County
Clerk’s Office, and could have requested a marriage license from a neighboring county.
Id. Plaintiffs, however, claim that Defendant’s “no marriage licenses” policy should be
subjected to strict scrutiny because it “impose[d] a direct and substantial burden on
Plaintiffs’ right to marry.”
(Doc. # 31 at 29).
Moreover, Plaintiffs argue that the
Defendant’s “no marriage licenses” policy fails to satisfy even the more lenient rationalbasis standard. Id. at 29-30.
As the Sixth Circuit has stated, “[c]ase law illustrates what the Supreme Court
means by ‘direct and substantial.’” Montgomery, 101 F.3d at 1124. In Loving, the
Supreme Court determined that “the anti-miscegenation statute at issue was a ‘direct and
substantial’ burden on the right of marriage because it absolutely prohibited individuals of
different races from marrying.” Id. (citing Loving, 388 U.S. 1). In Zablocki, the Court found
that “the burden on marriage was ‘direct and substantial’ because the Wisconsin statute
in that case required non-custodial parents, who were obliged to support their minor
children, to obtain court permission if they wanted to marry.” Id. (citing Zablocki, 434 U.S.
374). Specifically, the Zablocki Court reasoned:
Some of those in the affected class … will never be able to obtain the
necessary court order, because they either lack the financial means to meet
their support obligations or cannot prove that their children will not become
public charges. These persons are absolutely prevented from getting
married. Many others, able in theory to satisfy the statute’s requirements,
will be sufficiently burdened by having to do so that they will in effect be
coerced into forgoing their right to marry. And even those who can be
persuaded to meet the statute’s requirements suffer a serious intrusion into
their freedom of choice in an area in which [the Court has] held such
freedom to be fundamental.
Zablocki, 434 U.S. at 387.
By contrast, in cases where there is “no direct legal obstacle in the path of persons
desiring to get married, and … no evidence that the laws significantly discouraged, let
alone made ‘practically impossible,’ any marriages,” the Supreme Court has found that
the governmental action was not a “direct and substantial” infringement on the right to
marry. Id. at 387 n.12 (citing Califano v. Jobst, 434 U.S. 47 (1977) (upholding a Social
Security Act provision that terminated benefits for a disabled dependent child when that
child married someone who was ineligible for benefits)). Therefore, if the governmental
policy or action “merely plac[es] a non-oppresive burden on the decision to marry, or on
those who are already married,” such a burden is “not sufficient to trigger heightened
constitutional scrutiny.” Montgomery, 101 F.3d at 1125 (applying rational-basis review to
public school’s anti-nepotism policy, which “impose[d] some costs and burdens on
marriage,” but were “not ‘direct’ in the sense that they place[d] an absolute barrier in the
path of those who wish to marry.”); see also Wright, 58 F.3d at 1135-36 (also applying
rational-basis review to nepotism policy requiring transfer, which “does not create a legal
obstacle that would prevent a class of people from marrying.”); Vaughn, 269 F.3d at 712
(holding nepotism policy requiring termination “did not bar [plaintiffs] from getting married,
nor did it prevent them marrying a large portion of population even in Lawrence County,”
rather the policy “only made it economically burdensome to marry a small number of those
This Court previously determined that Defendant’s “no marriage licenses” policy
placed a “direct and substantial burden” on the right to marry and thus, was subjected to
strict scrutiny. Miller, 0:15-cv-44-DLB-EBA (Doc. # 43 therein). Nothing in the record has
altered the preliminary decision the Court reached in Miller.
The state action at issue in this case is Defendant’s refusal to issue any marriage
licenses. That policy constituted a “direct and substantial interference” with the Plaintiffs’
right of marriage because it was a “direct legal obstacle in the path of [all Rowan County
residents] desiring to get married.” Zablocki, 434 U.S. at 387. Defendant’s “no marriage
licenses” policy differs significantly from the anti-nepotism policies, which simply deter
“some persons who might otherwise have married” or economically burden “some who
[do] marry.” Montgomery, 101 F.3d at 1126.
The Court recognizes that the Plaintiffs might have been able to travel to a
neighboring county and request a marriage license, as Defendant suggests.9 (Doc. # 291 at 28-29). But that is beside the point. The plaintiffs in Zablocki also had a potential
“end run” around the challenged statute in that case—they could have complied with the
law and obtained the required court order—but the Supreme Court still found that the
statute “directly and substantially” interfered with the plaintiffs’ fundamental right to marry.
Zablocki, 434 U.S. at 387.
The Court does, however, note that Rowan County is situated in a rural portion of eastern
Kentucky. And the counties surrounding Rowan County—Fleming, Lewis, Carter, Elliott, Morgan,
Menifee, and Bath—have County Clerk’s Offices that range from approximately 20 to 40 miles
away from the Rowan County Clerk’s Office.
Like the plaintiffs in Zablocki, some Rowan County residents would “never be able
to” receive a marriage license, “because they either lack[ed] the financial [or practical]
means” to travel to a neighboring county. Id. “These persons [were] absolutely prevented
from getting married.” Id. “Many others, able in theory to” travel to a neighboring county
to obtain their marriage license, would have been “sufficiently burdened by having to do
so,” such that they were “in effect … coerced into forgoing their right to marry.” Id. “And
even those who [could have been] persuaded” to travel to a neighboring county to obtain
their marriage license, “suffer[ed] a serious intrusion into their freedom of choice in an
area in which” the Supreme Court has held “such freedom to be fundamental.” Id.
Therefore, the Defendant’s “no marriage licenses” policy placed a “direct and
substantial burden” on the right to marry, and must be subjected to strict scrutiny.
Montgomery, 101 F.3d at 1124. Accordingly, the “no marriage licenses” policy “cannot
be upheld unless it is supported by sufficiently important state interests and is closely
tailored to effectuate only those interests.” Zablocki, 434 U.S. at 388.
As this Court previously held, Defendant’s “no marriage licenses” policy fails to
satisfy strict scrutiny.10 Miller, 0:15-cv-44-DLB-EBA (Doc. # 43 therein). The Court
acknowledges that the Commonwealth, “certainly has an obligation to ‘observe the basic
free exercise rights’” of state officials and employees.11 Id. However, the compelling
In fact, the Defendant’s “no marriage licenses” policy would fail to survive even rationalbasis review because it is an “unreasonable means of advancing” any “legitimate governmental
interest” that might exist. Vaughn, 269 F.3d at 712.
The Defendant’s briefing stops at challenging the application of strict scrutiny. She does
not attempt to argue that strict scrutiny is satisfied, nor does she articulate a specific state interest
or argue that her “no marriage licenses” policy was closely tailored to effectuate only those
interests. Out of an abundance of caution, however, the Court will consider the state interest the
Defendant proffered in Miller—the Commonwealth’s interest in protecting her religious freedom.
Miller, 0:15-cv-44-DLB-EBA (Doc. # 43 therein).
nature of that interest is diminished by the Commonwealth’s countervailing interests in
“preventing Establishment Clause violations” and “upholding the rule of law.” Id. Thus,
the Defendant’s “no marriage licenses” policy was not supported by a sufficiently
important state interest.
Moreover, even if the “no marriage licenses” policy were
supported by a sufficiently important state interest, the policy was certainly not “closely
tailored” to effectuate only those interests. The Defendant’s “no marriage licenses” policy
was not tailored in any meaningful way; it prevented all Rowan County residents from
obtaining a marriage license in their home-county. Therefore, viewing the facts alleged
in the light most favorable to the Plaintiffs, they have plausibly made out a violation of a
constitutional right. Martin, 712 F.3d at 957.
The constitutional right at issue was clearly established.
constitutional rights, the Court now turns to whether the right at issue was clearly
A constitutional right is clearly established if the “contours of the right [are]
sufficiently clear that a reasonable official would understand that what [she] is doing
violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
precedent from the Supreme Court, the Sixth Circuit, or the district court itself’ can provide
such clarity; persuasive authority from ‘other circuits that is directly on point’ may also
demonstrate that a law is clearly established.” Occupy Nashville v. Haslam, 769 F.3d
434, 443 (6th Cir. 2014) (quoting Holzemer v. City of Memphis, 621 F.3d 512, 527 (6th
“This is not to say that an official[’s] action is protected by qualified immunity
unless the very action in question has previously been held unlawful.” Anderson, 483
U.S. at 640. Nor must there be “a case directly on point, but existing precedent must
have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011).
Put simply, the “salient question” is “whether the state of the law” on July 6, 2015—
the day Plaintiffs first requested a marriage license from the Rowan County Clerk’s
Office—gave Defendant “fair warning that [her] alleged treatment of [Plaintiffs] was
unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). “Plaintiffs have the burden
of showing that a right is clearly established.” Toms, 338 F.3d at 525 (citing Pray v. City
of Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995)).
Plaintiffs rely on the Supreme Court’s holding in Obergefell, which extended the
fundamental right to marry to same-sex couples, as proof that their rights were clearly
established when the Defendant adopted her “no marriage licenses” policy. (Doc. # 31).
The Defendant claims that Plaintiffs’ rights were not clearly established, despite
Obergefell, for several reasons. (Doc. # 37 at 7-15). Each of the Defendant’s arguments,
which will be addressed in turn, fail.
First, the Defendant suggests that “recently enacted or modified law cannot be
Id. at 8-9.
This argument is not supported by the law.
Defendant cites Harlow v. Fitzgerald for the following proposition: “If the law at that time
was not clearly established, an official could not reasonably be expected to anticipate
subsequent legal developments, nor could he fairly be said to know that the law forbade
conduct not previously identified as unlawful.” Id. (quoting Harlow, 457 U.S. at 818). But
that principle has no relevance in this particular case. On June 26, 2015, the Supreme
Court held that States were prohibited from denying the fundamental right to marry to
same-sex couples. See Obergefell, 135 S. Ct. 2584. After Obergefell, the “unlawfulness”
of the Defendant’s refusal to issue marriage licenses to legally eligible couples, including
same-sex couples, was “apparent.”12 Hope, 536 U.S. at 739. Thus, Davis needed not
anticipate subsequent legal developments, but merely comply with those legal
Furthermore, “officials can still be on notice that their conduct violates established
law even in novel factual circumstances.” Sutton v. Metro. Gov’t of Nashville, 700 F.3d
865, 876 (6th Cir. 2012). “Some violations of constitutional rights are so obvious that a
‘materially similar case’ is not required for the right to be clearly established.” Hearring v.
Sliwowski, 712 F.3d 275, 280 (6th Cir. 2013) (citing Brosseau v. Haugen, 543 U.S. 194,
199 (2004)). “When a general constitutional principle is not tied to particularized facts,
the principle can clearly establish law applicable in the future to different sets of detailed
Sample v. Bailey, 409 F.3d 689, 699 (6th Cir. 2005) (internal citations and
quotation marks omitted). The refusal to issue marriage licenses to same-sex couples
after June 26, 2015 is such a situation. Even if considered a “novel factual circumstance,”
the Plaintiffs’ fundamental right to marry was so “obvious” after Obergefell that the
Defendant had fair notice that adopting her “no marriage licenses” policy was
In support of her qualified-immunity claim, the Defendant also argues that the
“Plaintiffs’ description of their alleged right is too generalized to satisfy the clearly
established requirement.” (Doc. # 37 at 9-11). Specifically, the Defendant claims that the
Although outside the pleadings in this case, the Court notes that the Defendant’s own
testimony has established that she adopted her “no marriage licenses” policy in response to the
Supreme Court’s decision in Obergefell. Miller, 0:15-cv-44-DLB-EBA (Doc. # 26 at 33:13-36:4;
“relevant constitutional question” is not whether it was clearly established that “the
Commonwealth of Kentucky [was] required to license and recognize [same-sex
marriage].” (Doc. # 29-1 at 22). Rather, Defendant suggests that “the particular inquiry
… is whether Obergefell requires Kentucky to compel each and every county clerk to
authorize and approve [same-sex marriage] licenses without any accommodation for their
sincerely[ ]held religious beliefs.” Id. Because that issue “has not been specifically
litigated in Kentucky courts, let alone decided by the Sixth Circuit or the Supreme Court,”
the Defendant claims that the law cannot be “clearly established.” Id.
“The operation of” qualified immunity “depends substantially upon the level of
generality at which the relevant ‘legal rule’ is to be identified.” Anderson, 483 U.S. at 639.
Therefore, the Supreme Court has “repeatedly told courts … not to define clearly
established law at a high level of generality, since doing so avoids the crucial question
whether the official acted reasonably in the particular circumstances that he or she faced.”
Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014). If the right is defined too broadly, it
“bear[s] no relationship to the ‘objective legal reasonableness’ that is the touchstone” of
the qualified-immunity inquiry, and “Plaintiffs would be able to convert the rule of qualified
immunity … into a rule of virtually unqualified liability simply by alleging violation of
extremely abstract rights.” Anderson, 483 U.S. at 639.
However, the inverse is also true. A constitutional right can be defined with such
detail and particularity that each new case would further define and explain the right,
converting qualified immunity into absolute immunity. In this case, the correct articulation
of the Plaintiffs’ claimed right can be easily derived from Obergefell:
[T]he right to marry is a fundamental right inherent in the liberty of the
person, and under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment, couples of the same-sex may not be deprived of
that right and that liberty. The Court now holds that same-sex couples may
exercise the fundamental right to marry. No longer may this liberty be
denied to them.
Obergefell, 135 S. Ct. at 2605-06.
The right of same-sex couples to exercise the
fundamental right to marry is not an extremely abstract right, like “the right to due process
of law.” Anderson, 483 U.S. at 639. Instead, it is sufficiently particularized. Id. Therefore,
Plaintiffs’ alleged right is not “too generalized to satisfy the clearly established
Moreover, the Defendant’s improper characterization of the right that must be
clearly established, and her remaining arguments, fail because her focus is misplaced.
In her attempt to argue that Obergefell did not clearly establish Plaintiffs’ rights, the
Defendant claims that “Obergefell did not answer every question.” (Doc. # 37 at 7).
Specifically, the Defendant argues that Obergefell answered only a “narrow constitutional
question”—whether the fundamental right to marry extended to same-sex couples—but
left open whether she “must abandon any claim” to a religious accommodation. Id. at 78. Relatedly, the Defendant argues that the First Amendment’s Establishment Clause,
Free-Exercise Clause, and the Kentucky Religious Freedom Restoration Act created
“reasonable uncertainty” as to her obligations and the clarity of the law. Id. at 11-15.
It is not necessary for Obergefell to answer every question. Obergefell answered
one question—whether the fundamental right to marry extended to same-sex couples.
The answer was yes, and that clearly established Plaintiffs’ constitutional rights.
Furthermore, the focus of both of these arguments is on the Defendant—on her rights,
her obligations, and her desire for a religious accommodation. But that misses the mark.
The cornerstone of the qualified-immunity inquiry is whether Plaintiffs’ rights, not the
Defendant’s, are “clearly established.”13
Thus, the Defendant’s hope that the First
Amendment or Kentucky’s Religious Freedom Restoration Act excused her conduct in
violating Plaintiffs’ clearly established rights, does not entitle her to qualified immunity.
In conclusion, the Defendant had fair warning on July 6, 2015—when she denied
Plaintiffs’ request for a marriage license—that her conduct was unconstitutional.
Obergefell established on June 26, 2015, that same-sex couples, like the Plaintiffs, had
the right to exercise the fundamental right to marry. Obergefell further explained that
States could no longer deny that right to them. Therefore, the “contours of the right” were
“sufficiently clear” such that “a reasonable official would understand that” adopting a “no
marriage licenses” policy would violate that right. Anderson, 483 U.S. at 640.
The Plaintiffs have met their burden by “alleging facts plausibly making out a claim
that the defendant’s conduct violated a constitutional right that was clearly established
law at the time, such that a reasonable officer would have known that [her] conduct
violated that right.”
Johnson, 790 F.3d at 653 (citing Wesley, 779 F.3d at 428).
Accordingly, the Defendant’s Motion to Dismiss Plaintiffs’ money-damages claim against
her in her personal capacity must be denied.
The cases that the Defendant cites fail to convince the Court otherwise. The Defendant
attempts to rely on two First Amendment free-speech cases—Guercio v. Brody, 911 F.2d 1179
(6th Cir. 1990) and Gossman v. Allen, 950 F.2d 338 (6th Cir. 1991)—which are inapposite. In
addition to being factually distinguishable, the “balance” that Guercio and Gossman discuss is
mandated by the “familiar” First Amendment rule that requires “employees’ right to free speech”
to be balanced against “the countervailing interests of his employer.” Guercio, 911 F.2d at 1183
(citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). There is no precedential support for
applying this sort of “balancing” to Plaintiffs’ fundamental right to marry.
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
Defendant Kim Davis’s Motion to Dismiss Plaintiffs’ Amended Complaint
(Doc. # 29) is granted in part, as to Plaintiffs’ claims against Defendant Kim Davis in her
official capacity; and denied in part, as to Plaintiffs’ claims against Kim Davis in her
personal capacity; and
Plaintiffs’ Amended Complaint (Doc. # 27) is dismissed with respect to
Plaintiffs’ claims against Kim Davis in her official capacity.
This 15th day of September, 2017.
K:\DATA\Opinions\Ashland\15-46 Ermold MTD MOO.docx
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