LEXINGTON, Ky. — When Kim Davis, then the Rowan County clerk, repeatedly refused to sign her name to marriage licenses for unions of gay couples in her Eastern Kentucky county in the summer of 2015, she set off a firestorm that’s still smoldering today.

“For me, this would be an act of disobedience to God,” she told reporters in Morehead that September day a decade ago, just after her release from jail for violating a federal judge’s order demanding she issue the licenses.

The U.S. Supreme Court had legalized gay marriage months earlier, paving the way for same-sex couples in states, like Kentucky, that had previously banned the unions to have theirs legally recognized.

Tearing up, Davis said the courts were forcing her to choose between “my conscience or my ability to serve the people that I love. Obey God, or a directive that forces me to disobey God even when there are reasonable accommodations available. I have spent six days in jail because I could not abandon my faith.”

Though Davis is no longer the clerk, she has spent the past decade fighting for those “reasonable accommodations,” or legal permission, to skirt her duties as an elected official in favor of her First Amendment right to exercise her religious liberty, which she argues was trampled.

She has also become an international symbol of resistance embraced by Christian conservatives, who have led a coordinated effort to encourage the court to reverse its 2015 decision in Obergefell v. Hodges, the case that enshrined gay marriage as a constitutional right.

Davis’ actions, which she has exhaustively defended through 10 years of litigation, have been argued before nearly every tier of the judicial system. She has lost appeal after appeal, and judges and juries have ordered her to pay upwards of $350,000 in damages.

But still she fights.

In July, her attorneys with the conservative Christian legal group Liberty Counsel petitioned the Supreme Court to hear her latest appeal, spun out of a lawsuit filed by David Ermold and David Moore, one of the gay couples to whom Davis denied a marriage license in 2015.

Ermold, Moore and Davis declined through their respective attorneys to be interviewed for this story.

It’s the second time Davis and her attorneys’ have asked the high court to weigh in. Their first request was denied in 2020.

The Supreme Court will meet Friday, Nov. 7, to decide whether to allow their second request to move forward. Four justices have to agree to take the case in order for it to receive a hearing, which wouldn’t happen until the Supreme Court’s 2026 term. The decision to hear it next year could come as soon as mid-November.

Davis’ goal: Overturn Obergefell, the same court decision she refused to obey in 2015.

This latest request has worried LGBTQ couples across Kentucky and beyond, but legal scholars say that anxiety is premature; overturning Obergefell is still a long shot, they told the Herald-Leader, and doing it with Davis’ case is even more unlikely.

“In my view, it is highly unlikely that the Supreme Court will grant review of Davis’ case, and even more unlikely that it would take the occasion to revisit Obergefell,” University of Louisville law professor Sam Marcosson told the Herald-Leader.

“Her argument at best indirectly raises the question of whether the Court should overrule Obergefell, since her claim is that she shouldn’t be liable for defying Obergefell because Obergefell was wrong in the first place,” he said.

The problem Davis faces, Marcosson said, “is that even if the Court were to decide now that Obergefell was wrong, it was the prevailing law when she acted.”

Still, Liberty Counsel Founder Mat Staver continues to call Davis the “first victim” of Obergefell, and he accused Ermold and Moore of perpetrating a “decade-long vindictive campaign . . . to personally punish Kim Davis for refusing to violate her faith.”

Staver added, “if a Christian can be personally sued, jailed and held liable for their religious freedom and belief that marriage is the union of one man and one woman, then America’s religious freedom is meaningless.”

Kentucky’s role in legalizing gay marriage

Kentuckians have played a uniquely prominent role not only in defending heterosexual unions, but in helping the high court legalize gay marriage in the first place.

Even before Obergefell in 2015, there was Bourke v. Beshear in 2013 — which references former Gov. Steve Beshear — challenging two laws in Kentucky outlawing gay marriage: One passed by the legislature in 1998 and another passed by voter referendum in 2004.

That year, Gregory Bourke and Michael DeLeon, who live in Louisville, knew they couldn’t legally marry in Kentucky, so they traveled to Canada and were married in 2004 in a ceremony overlooking Niagara Falls, according to court filings and Herald-Leader reporting at the time.

Together since 1981, the couple has two children. But because of Kentucky’s marriage laws pre-Obergefell, they could not both claim legal guardianship over their children, according to the American Civil Liberties Union of Kentucky.

Only Bourke’s name was listed on their children’s birth certificates.

The same year they were married in Canada, Kentucky voters in November passed a constitutional amendment explicitly defining marriage as between one man and one woman and outlawing the legal recognition of same-sex unions. It was a near replica of the 1996 federal Defense of Marriage Act.

“Once this amendment passes, no activist judge, no legislature or county clerk in the commonwealth or outside of it will be able to change this fundamental fact: The sacred institution of marriage joins together a man and a woman for the stability of society and for the greater glory of God,” former state Sen. Vernie McGaha, R-Russell Springs, said in a Senate floor speech that year.

Kentucky’s amendment, which passed with 75% of the vote, also underscored a law passed by the General Assembly in 1998 voiding marriage licenses between same-sex couples obtained in other states.

Kentucky also still has a 1975 law on the books that classifies sodomy as a criminal misdemeanor, defining it as “deviate sexual intercourse with another person of the same sex.”

After marrying in 2004, Bourke and DeLeon lived in Louisville for the next decade without lawful recognition of their marriage or legal guardianship over their children. It wasn’t until the 2013 ruling in the United States v. Windsor that gave the couple legal ammunition to challenge Kentucky’s ban on gay marriage.

Edith “Edie” Windsor, who died in 2017, was at the time the sole executor over the estate of her late wife, Thea Spyer, who died in 2009. The couple lived in New York, and their marriage was recognized by state law. But 1996’s Defense of Marriage Act, which defined legal marriage as only a heterosexual union, meant their marriage wasn’t recognized by federal law.

Windsor was required to pay more than $350,000 in taxes on Spyer’s estate, which Windsor inherited after her wife’s death. Had their marriage been legally recognized, those taxes would’ve been waived.

Windsor sued in 2010, arguing that the Defense of Marriage Act, referred to often as DOMA, was unconstitutional. In 2011, then-President Barack Obama and former Attorney General Eric Holder, both Democrats, declined to enforce the 1996 gay marriage ban, calling it unconstitutional.

In their landmark 5-4 ruling, the Supreme Court in June 2013 agreed. The majority wrote that DOMA imposed a “disadvantage, a separate status, and so a stigma” on gay couples, therefore the federal law violated same-sex couples’ constitutional right to Equal Protection.

This repeal was the first substantive blow to state laws across the country that protected only the constitutional right to heterosexual marriage, and it paved the way for Obergefell two years later.

With the Windsor victory in tow, Bourke and DeLeon sued the state of Kentucky in July 2013, arguing that their right to equal protection under the law was being infringed on by Kentucky’s 1998 law and its 2004 constitutional amendment.

Kentucky has “elected to condition innumerable ‘protections’ — ranging from adoption rights to survivorship guarantees — on marital status,” their lawyers wrote in a filing. “Yet (Kentucky) offers these legal protections to only part of (its) population and refuses to allow gay people equal access to them.”

A federal judge handed Bourke and DeLeon a major victory Feb. 12, 2014, striking down key parts of both the amendment and law.

“From a constitutional perspective, the question here is whether Kentucky can justifiably deny same-sex spouses the recognition and attendant benefits it currently awards opposite-sex spouses,” former U.S. District Judge John Heyburn, an appointee of President George H.W. Bush wrote, wrote in a 23-page opinion.

Heyburn’s decision positioned Kentucky as the first state in the South to issue a ruling recognizing the legality of gay marriages, according to the Associated Press.

“In a democracy, the majority routinely enacts its own moral judgments as laws. Kentucky’s citizens have done so here. For years, many states had a tradition of segregation and even articulated reasons why it created a better, more stable society,” Heyburn wrote.

“Similarly, many states deprived women of their equal rights under the law, believing this to properly preserve our traditions. In time, even the most strident supporters of these views understood that they could not enforce their particular moral views to the detriment of another’s constitutional rights. Here as well, sometime in the not too distant future, the same understanding will come to pass.”

Then-Kentucky Attorney General Jack Conway, a Democrat, made headlines when he refused to appeal Heyburn’s ruling.

“From a constitutional perspective, Judge Heyburn got it right,” Conway tearfully said at a news conference. Were he to appeal the ruling, he said, “I would be defending discrimination. That I will not do.”

Two days after Heyburn’s ruling, on Valentine’s Day, Bourke and DeLeon’s attorneys filed Love v. Beshear, representing another similarly situated couple; Tim Love and Larry Ysunza lived in Louisville and married in Vermont in 2000, and they wanted their marriage recognized in Kentucky.

By that point, five couples had joined Bourke and DeLeon’s legal pursuit, which was gaining national steam.

Lawsuits were emerging victorious in other states. Later that month, judges made similar rulings in Virginia, Texas, Tennessee and Ohio, where Obergefell v. Hodges originated. Attorneys general in those states challenged the cases to their respective U.S. appellate courts.

Plaintiffs in Kentucky, Michigan, Ohio and Tennessee together appealed to the Sixth Circuit Court of Appeals in August 2014, asking that the rulings in their favor be upheld. By that point, 19 states and the District of Columbia had legally sanctioned the right for gay couples to marry.

But a panel of appellate judges wasn’t convinced it rested with the courts to fundamentally change how states recognized legal unions. It should fall to the people and the democratic process, they said.

“The theory of the living constitution rests on the premise that every generation has the right to govern itself. If that premise prevents judges from insisting on principles that society has moved past, so too should it prevent judges from anticipating principles that society has yet to embrace,” Chief Judge Jeffrey Sutton wrote for the majority.

“Not long from now, if current trends continue, American society may define marriage in terms of affirming mutual love, a vision under which the failure to add loving gay couples seems unfair. Today’s society has begun to move past the first picture of marriage, but it has not yet developed a consensus on the second.”

‘Premature panic’ that Obergefell will be overturned

Less than a week after the Sixth Circuit’s reversal, plaintiffs in the joint case petitioned the U.S. Supreme Court. The cases consolidated across states, including Kentucky, became known as Obergefell v. Hodges.

Justice Anthony Kennedy delivered the majority 5-4 opinion, granting the legal right to marriage for same-sex couples across the country, and nullifying state laws that historically prohibited it.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family,” Kennedy wrote. “As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death.

“It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves . . . they ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

The landmark case was decided June 26.

Later that day, then-Gov. Beshear directed all county clerks to begin issuing marriage licenses to gay couples. Davis refused to sign her name to the licenses.

In July, four couples, including Ermold and Moore, sued her for violating their constitutional right to marry. In early August, Davis sued Beshear for forcing her to comply the directive, claiming it violated her Christian beliefs.

In September, Davis was jailed for six days in Rowan County — and drew national headlines — for refusing to heed a judge’s order piggybacking on Beshear’s directive: that Davis must issue lawful marriage licenses to gay couples.

Ermold and Moore, one of the couples denied a marriage license by Davis’ office, sued in 2016. What Davis and her attorneys with Liberty Counsel are currently appealing to the Supreme Court is that she should not be held liable to pay the couple more than $360,000 in damages.

Her attorneys have argued for years that she had qualified immunity, meaning she cannot be held legally accountable or liable for actions that may have violated state or federal laws. But she has repeatedly lost before courts with this argument.

“Kim Davis has a decade-long track record of losing, and there’s no reason to think that losing streak is going to end this year,” said Laura Landenwich, one of the original attorneys for Bourke and DeLeon.

Neither Landenwich nor any of the lawyers and legal scholars who’ve spoken to the Herald-Leader think Davis’ protracted case is the right vehicle for the court to overturn Obergefell.

Davis was acting in her capacity as a county clerk when she violated the law, not as an individual, they say. And the statutory duties of her role were clear, even though she has claimed it forced her to violate her religious liberty protections.

“It is at such a preliminary phase of the Supreme Court process, which is designed to limit the number of cases it takes. And this case has none of the factors that typically justify a Supreme Court granting review,” Landenwich said.

She’s referring to the fundamental argument in Davis’ case and whether she can show she — a government employee at the time, beholden to statutory obligations — was denied protections under the law.

“If the legal issue is whether to overrule Obergefell, the court is much more apt to take that issue up in a case that involves a state’s attempt to deny the legal right to marry, or afford one or more of the legal benefits of marriage, to same-sex couples,” Marcosson said.

“Davis’ case doesn’t arise from a situation like that. Instead, it involves her challenging the damages she was ordered to pay for defying court orders and refusing to issue marriage licenses,” he said.

At the heart of Davis’ defense before the Supreme Court is her First Amendment right to free speech, which includes the exercise of religion — a right Davis’ attorneys say she was denied and then punished for exercising.

Emold’s and Moore’s attorneys challenge the fundamentals of this argument Oct. 8 brief to the high court.

Davis’ argument “boils down to a single issue: whether government officials may assert their private First Amendment rights as a defense to liability for their official actions taken on behalf of the State,” the couple’s attorneys wrote.

That argument, they wrote, is “simply wrong.”

Bill Powell, one of Ermold’s and Moore’s attorneys, told the Herald-Leader he was confident the high court will conclude that Davis’ case does “not merit further attention.”

“Marriage equality is settled law,” he said.

“I just want to be careful to not cause panic, because I feel like there is growing panic. But I don’t want the whole gay community to go out and incur a bunch of legal bills trying to protect themselves under this idea that their marriages are going to evaporate,” Landenwich said.

Gay people “have a valid marriage, and they’re going to have a valid marriage,” she added. “If anything is going to happen to nullify that marriage, there’s going to be a whole lot of lead time to prepare, (and) a whole lot of litigation before there’s any impact on the daily lives of people. It’s way premature to panic.”

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