By Liberty Counsel 
Liberty Counsel filed its response brief  in the appeal to the Sixth Circuit Court of Appeals on behalf of former Rowan County, Kentucky Clerk Kim Davis, who was denied the motion for summary judgment by U.S. District Court Judge David Bunning in the cases of Ermold v. Davis and Yates v. Davis. Liberty Counsel argues that Davis is not liable for damages because she was entitled to a religious accommodation, which Governor Matt Bevin and the legislature eventually unanimously granted, from issuing marriage licenses that conflict with her religious beliefs.
In this reply brief , Liberty Counsel presents new factual and U.S. Supreme Court decisions in Fulton v. City of Philadelphia, Kennedy v. Bremerton School District and Masterpiece Cakeshop v. Colorado Civil Rights Commission, that the Sixth Circuit did not review in the last appeal that affirms Davis’ First Amendment free exercise defense.
In 2021, the U.S. Supreme Court ruled unanimously in favor of Catholic Social Services, a foster care agency that refuses to compromise its religious beliefs by placing children with same-sex couples. The High Court’s decision in Fulton v. City of Philadelphia has a significant impact on every area of the free exercise of religious freedom. In the case of Davis, this SCOTUS decision amplifies Davis’ free exercise defense to the plaintiffs’ attempt to enforce Governor Beshear’s marriage license mandate against her. Governor Beshear burdened her religious exercise as a matter of law by attempting to coerce Davis to choose between violating her conscience or resigning from her position as county clerk.
In June 2022, the High Court ruled 6-3 in favor of a high school football coach who was fired for silently praying on the field after games. Relying on both the First Amendment Free Speech and Free Exercise Clauses, the High Court ruled that the Bremerton School District violated both provisions when it fired Coach Joe Kennedy for having prayer on the 50-yard line of the football field after the game, even though the school district argued that his prayer violated the Establishment Clause.
Therefore, the decision in Kennedy v. Bremerton School District requires balancing Davis’ free exercise rights with the plaintiffs’ marriage rights without picking a constitutional winner and loser. In Kennedy, the Supreme Court further amplified and sharpened the free exercise rights applicable to Davis’ qualified immunity defense in this case. The High Court made clear that the Free Exercise Clause protects the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through the performance of, or abstention from, physical acts. The Kennedy decision rejects the proposition that where a free exercise right is in tension with another constitutional guarantee, one must yield to the other.
In 2018, SCOTUS ruled 7-2 in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a historic case that protects the right to free exercise of religion against the LGBT “sexual orientation” law that was being used to force a Christian baker to violate his conscience. The Court ruled that the Colorado Civil Rights Commission violated the neutrality required by the First Amendment by making disparaging comments against Jack Phillips’ religious beliefs regarding same-sex “marriage.” Jack Philips, the owner of Masterpiece Cakeshop, refused to use his artistic talents and expression to promote a same-sex ceremony.
The Masterpiece Cakeshop decision forbids judicial hostility towards Davis’ religious beliefs about marriage. In fact, the Supreme Court held that “official expressions of hostility to religion” violate free exercise rights. Therefore, under Masterpiece Cakeshop, such judicial hostility towards Davis’s religious beliefs violates her free exercise rights.
In Kentucky, applicants can go to any authorized location to obtain a marriage license. In fact, one of the plaintiffs in this case traveled two hours to work each day. Yet he refused to travel an additional five minutes from his residence to the nearest adjacent county to obtain the license. That does not present a burden to obtain a license. He clearly only wanted to obtain his license from the Rowan County office with Davis’ signature on it.
Liberty Counsel Founder and Chairman Mat Staver said, “The First Amendment and the Free Exercise Clause guarantees there is no constitutional winner or loser regarding upholding sincerely held religious beliefs. The Supreme Court’s decision in the Kennedy case affirmed that. Kim Davis has a right to live out her religious beliefs just as the plaintiffs have a right to obtain a marriage license. Therefore, she is not liable for damages because she was entitled to a religious accommodation based on her sincerely held religious beliefs about marriage.”
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