Kim Davis v. David Ermold, et al.

In Obergefell v. Hodges, “five lawyers closed the debate,” and imposed “an act of will, not legal judgment. The right it announce[d] had no basis in the Constitution.” 576 U.S. 644, 687 (2015) (Roberts, J., dissenting). “[T]the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text.” Davis v. Ermold, 141 S. Ct. 3, 3 (2020) (Thomas, J., Statement). As predicted at the time Obergefell was decided, it “would threaten the religious liberty of many Americans who believe that marriage is a sacred institution between one man and one woman.” Id. “As a result of this Court’s alteration of the Constitution, Davis found herself with a choice between her religious beliefs and her job. When she chose to follow her faith . . . she was sued almost immediately for violating the constitutional rights of same-sex couples.” Id. And, after being sued, she was thrown in jail for doing so and then faced a jury verdict of $100,000 (plus $260,000 in attorney’s fees) based solely on emotional distress damages for “hurt feelings” with no actual damages in her individual capacity because the lower courts held that she was entitled to no First Amendment protection. If ever a case deserved review, the first individual who was thrown in jail post-Obergefell for seeking accommodation for her religious beliefs should be it. The Questions Presented are: (1) Whether the First Amendment Free Exercise Clause provides an affirmative defense to tort liability