Former Kentucky clerk claims personal liability for emotional distress violates her rights—and asks Court to reverse landmark same-sex marriage ruling
Kim Davis, the former Rowan County, Kentucky clerk who refused to issue marriage licenses to same-sex couples in 2015, has asked the U.S. Supreme Court not only to overturn a $100,000 judgment against her but to strike down Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage nationwide.
In a petition filed July 24, 2025, Davis argues that holding her personally liable for emotional distress damages violates her First Amendment right to free exercise of religion. The claim arises from a lawsuit filed by David Ermold and David Moore, a couple whom Davis denied a marriage license shortly after the Obergefell decision. Although they later received a license from another clerk in the same office, they sued for emotional harm, and a jury awarded $50,000 each.
Davis contends that her refusal was a constitutionally protected act of conscience. Represented by Liberty Counsel, she argues that public officials sued in their personal capacity should be allowed to assert First Amendment defenses. The petition characterizes the jury verdict as punishment for her beliefs, not her conduct.
But Davis is also using the case to ask the Court to revisit and reverse Obergefell itself. Her attorneys claim the ruling has no textual basis in the Constitution and improperly imposed a right that should be left to the states. The petition explicitly invokes the Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, as precedent for reversing Obergefell.
The Sixth Circuit Court of Appeals previously rejected Davis’s defense, ruling that she acted under color of state law and was not entitled to invoke the First Amendment to shield herself from personal liability. The court found that denying a government service based on religious objections violated clearly established constitutional rights. While the damages were for emotional distress, the court upheld the jury’s finding that Davis’s conduct caused harm.
The petition mirrors a broader trend: invoking religious liberty not only to protect personal conduct, but to limit the rights of others. This legal approach became common during the COVID-19 pandemic, where some individuals cited religious exemptions to vaccine mandates and public health measures, even when doing so affected others’ safety or access to services.
The strategy raises a difficult constitutional question: when does protecting individual liberty begin to erode the liberties of others? Davis argues that freedom of religion protects her decision not to issue licenses. But her critics point out that this interpretation could allow government officials to impose personal beliefs on others, effectively turning individual liberty into a license to discriminate.
In practical terms, the case asks the Court to decide whether constitutional protections for religion permit former public officials to evade personal liability when their actions violate others’ constitutional rights. It also opens the door to revisiting Obergefell, a ruling that, until now, had appeared settled.
This case highlights the tension between two foundational principles of constitutional law: individual liberty and equal protection. While liberty is essential, expanding it to the point where it directly restricts another person’s constitutional rights creates an imbalance. When one person’s liberty allows them to deny another’s, liberty itself becomes unstable—subject to the strongest belief rather than the most equal law.
The Court has not yet decided whether it will hear Davis’s petition. The plaintiffs’ response is due in early September, with a potential certiorari decision this fall.
Petition: https://lc.org/PDFs/Attachments2PRsLAs/2025/250724Petition-WritofCertiorari(asfiled).pdf