Judge who ordered Kim Davis to violate faith gives ACLU cash bonanza

Rowan County Clerk Kim Davis

A federal judge who sent Rowan County, Kentucky, clerk Kim Davis to jail for refusing to violate her faith now has awarded nearly $223,000 in state taxpayer funds to American Civil Liberties Union lawyers who sued Davis.

The ruling from Judge David Bunning, who even threatened Davis' assistants when the battle over marriage licenses for same-sex couples was raging, also awarded the ACLU $2,000 in costs.

The state funds were awarded even though a magistrate who was assigned to investigate the Davis case concluded the pro-homosexual advocates were not the prevailing party in the fight, a necessity for them to be awarded a payout.

Bunning specifically ruled that Davis and the county were not liable for the money judgment.

The non-profit Liberty Counsel has been defending Davis since she decided her office would no longer provide marriage licenses to anyone – either homosexual or heterosexual couples – when the U.S. Supreme Court created same-sex "marriage."

She asked the state for the simple accommodation of removing her name from the licenses, and the governor refused. Then several same-sex couples sued her for treating them unequally, even though all comers to her office were given the same answer.

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The next governor provided Davis' requested accommodation, and the state legislature adopted a law backing the decision. At that point, the lawsuits became moot and mostly were dismissed.

Liberty Counsel noted Bunning's conclusion that a temporary preliminary injunction "entitled" the ACLU lawyers to fees and costs.

"We are pleased that neither Kim Davis nor Rowan County are liable for attorney's fees or costs," said Mat Staver, Liberty Counsel chairman. "The part of the ruling that finds the plaintiffs were prevailing parties is contrary to the law because the legislature mooted the case by passing a law that provides for the precise religious liberty accommodation Kim Davis sought."

He continued: "While Kim Davis and Rowan County are not liable for fees and costs, neither is the Commonwealth of Kentucky, and this aspect of the ruling will be appealed. The magistrate correctly found that the plaintiffs were not the prevailing parties. That ruling is consistent with the Sixth Circuit Court of Appeals.

Staver said Gov. Matt Bevin's executive order and the legislature "mooted the case and [that] prevents the plaintiffs from being prevailing parties.

"Without prevailing party status, there can be no attorney’s fees."

When the cases were abandoned following the adoption of the new state law that allows marriage licenses to be issued without a clerk's signature, the 6th U.S. Circuit Court of Appeals vacated Bunning's earlier orders to Davis.

The magistrate judge, Edward Atkins, investigated, reviewed the evidence and released an order rejecting the ACLU's demands for a huge cash windfall.

He said "the plaintiffs are not 'prevailing parties' … and are therefore not entitled to an award of attorneys' fees."

Bunning changed that, simply calling the ACLU a prevailing party. He did admit that the plaintiffs were unsuccessful in their demands for a permanent injunction, class certification, declaratory judgment, trial by jury and damages. In fact, about all they won was the preliminary temporary injunction, after which the cases were closed down because the law was changed.

Bunning also admitted that the state process was changed to accommodate Davis' request, and she was successful in that regard.

Bunning did criticize the ACLU lawyers for not only using a technique called "block billing" but also billing for clerical tasks, which are not reimbursed.

The judge noted the ACLU lawyers charged up to $700 per hour and claimed they worked up to 224 hours. Beneficiaries, if an appeal does not overturn the payments from taxpayers, will be William Sharp, Daniel Canon, Laura Landenwich, L. Joe Dunman, Ria Tabacco Mar, James Esseks, Daniel Mach and Heather Weaver.

Davis' lawyers long have contended that the case was not so much about same-sex duos obtaining licenses as it was an attack on Christians.

Davis ended up in jail for six days in 2015 when Bunning, responding to the "gay" activists' demands, ordered her to violate her Christian beliefs or go to the slammer. Her lawyers, at that time, noted a recurring theme in court filings from homosexuals: punish Kim Davis.

Liberty Counsel's Staver said: "It has never really been about a marriage license – Rowan County has issued the licenses – it is about forcing their will on a Christian woman through contempt-of-court charges, jail and monetary sanctions."

The attorneys said then: "The fact is the plaintiffs already possess marriage licenses from Rowan County that have been approved as being valid by the Kentucky governor and Kentucky attorney general. Kim has taken all reasonable steps and good faith efforts to substantially comply with this court's orders."

In fact, the lawyers pointed out that some of the plaintiffs who sued Davis had to travel through or around jurisdictions where they would have been allowed to purchase licenses in order to get to Davis' office, where they knew the licenses were not being issued.

The evidence indicated the objective of the court cases was not simply to obtain licenses, but to reduce the Constitution's religious rights to a secondary role behind homosexual rights.

Their latest move indicated they wanted Davis punished financially, her lawyers said.

Liberty Counsel explained: "In the original 2015 marriage license case, Miller v. Davis, Kim Davis spent six days in jail for refusing to violate her conscience by issuing marriage licenses to same-sex couples under her name and authority. As a result, Kentucky Governor Matt Bevin signed an executive order creating a new marriage license form removing county clerks' name and authority, and the Kentucky General Assembly unanimously made Governor Bevin's protections permanent for Davis and her fellow county clerks."

Roger Gannam, Liberty Counsel's assistant vice president of legal affairs, said the latest plaintiffs "simply cannot be satisfied with the marriage licenses they received while Kim Davis was in jail."

"The Commonwealth of Kentucky has moved on, and the plaintiffs' renewed attempts to seek money and attention should be dismissed so that Kim Davis can move on with serving the people of Rowan County," he said.

One of the motions to dismiss explains bluntly: "This case is not about whom a person may marry under Kentucky law, whether Kentucky must license the marriage of a same-sex couple, or even whether plaintiffs could obtain a Kentucky marriage license when they wanted one. Nor is this case about a county clerk who wanted to relitigate the Supreme Court's decision in Obergefell v. Hodges, or to prevent Plaintiffs or any other same-sex couple from receiving a marriage license in Kentucky."

The filing continues: "Rather, this case has always been about Plaintiff's attempt to force an 'all or nothing' choice between same-sex marriage on the one hand, and religious liberty on the other, with no regard whatsoever for any reasonable accommodation. Now that Kentucky has moved on, after its highest officials changed the law to vindicate Davis' religious liberty rights and provide her requested accommodation, even while ensuring no Kentuckian was denied a valid marriage license, plaintiffs want to punish Davis for resisting an act that would have violated her deeply held religion convictions and conscience."

The heart of the matter, the filing explained, is that the plaintiffs demand a right "to marry includes the right to be issued marriage license by Davis, in Rowan County."

And, the filing noted, Kentucky law requires that "government shall not substantially burden a person's freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act."