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The United States Court of Appeals for the Sixth District recently decided that a same-sex couple’s suit against County Clerk Kim Davis of Rowan County, Kentucky was erroneously dismissed.  The suit for damages-only under 42 U.S.C.S. § 1983 was brought by David Ermold and David Moore after Clerk Davis denied them the marriage license for which they had applied. 

On June 26, 2015, the United States Supreme Court held in Obergefell v. Hodges that Kentucky's definition of marriage as a union between one man and one woman violated the Fourteenth Amendment to the United States Constitution, "to the extent [it] exclude[s] same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." On December 22, 2015, then-Kentucky Governor Matthew Bevin signed Executive Order 2015-048, which sought to resolve the conflict between the Kentucky Constitution's definition of marriage as between one man and one woman and the Supreme Court's decision in Obergefell. On April 13, 2016, Governor Bevin signed Kentucky Senate Bill 216,  which amended the Kentucky marriage-license issuance process so that county clerks' names and signatures no longer appear on marriage-license forms, and removed the requirement that "authorizing statements" and statements of recordation be made by the county clerk.

The district court had sua sponte dismissed Ermold's and Moore's case upon concluding that  because "marriage licenses continue to [be] issued without incident, there no longer remains a case or controversy before the Court."

The Sixth District held that neither Executive Order 2015-048 nor Senate Bill 216 rendered Ermold’s and Moore’s damages-only case moot.  Further, the Sixth District held that the record did not support an argument that plaintiffs' damages claims were insubstantial or otherwise foreclosed.

Lexis subscribers can access the opinion at: Ermold v. Davis, 855 F.3d 715 (6th Cir. Ky. May 2, 2017)

Lexis Advance subscribers can find the opinion at: Ermold v. Davis, 855 F.3d 715, 2017 U.S. App. LEXIS 7732, 2017 FED App. 0098P (6th Cir.) (6th Cir. Ky. May 2, 2017)


Author:  Gabriela N. Nolen, Lexis-Nexis Case Law Editor


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