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September 04, 2015 Practice Points

The Case of the Kentucky County Clerk

By Nick Kacprowski

Although the litigation regarding Rowan County Kentucky clerk Kim Davis has generated substantial national media coverage, largely missing is a more detailed description of the legal proceedings, which we attempt to offer here.

The ACLU of Kentucky and a Kentucky law firm filed the case on July 2, 2015, on behalf of a number of plaintiffs after clerk Kim Davis refused to issue marriage licenses in wake of the Obergefell decision. The case has been styled Miller et al. v. Davis et al., 0:15-cv-00044-DLB (E.D. Ky.). At the time of filing, the plaintiffs also moved for a preliminary injunction to compel Ms. Davis to issue the marriage licenses.

The court held a number of hearings and received numerous rounds of briefing during July and early August. Ultimately, the court issued the preliminary injunction on August 12, 2015, and Ms. Davis immediately appealed. Ms. Davis moved to stay the injunction pending appeal. The court refused the motion, but issued a temporary stay in order to allow the Sixth Circuit to address the stay issue. The temporary stay lapsed on August 31, 2015, after the Sixth Circuit denied the motion to stay made at the appellate level. The district court refused to extend its temporary stay pending an appeal to the Supreme Court.

While the litigation over the plaintiffs’ preliminary injunction was ongoing, Ms. Davis filed a third party complaint and a motion for preliminary injunction of her own on August 7, 2015. Her case is against the governor of Kentucky, who has ordered her to issue marriage licenses. The court stayed Ms. Davis’s motion for preliminary injunction pending the appeal of the court’s order granting the plaintiffs’ motion for preliminary injunction. Ms. Davis appealed the order staying her motion for preliminary injunction and then filed another motion for preliminary injunction on September 2, 2015, against the governor, this time asking for a preliminary injunction while the appeals were pending.

In the meantime, Ms. Davis has indicated that she will not abide by the court’s injunction requiring her to issue marriage licenses. Accordingly, on September 1, 2015, the plaintiffs filed a motion asking the court to hold her in contempt and requesting monetary sanctions (as opposed to incarceration) sufficient to compel her to comply with the court’s injunction. The court held a hearing on that motion on September 3, 2015. After hearing witnesses and argument, the court held Ms. Davis in contempt of court and ordered her “remanded to the custody of the United States Marshall pending compliance of the Court’s Order of August 12, 2015, or until such time as the Court vacates the contempt Order.” The court then denied Ms. Davis’s motion to stay enforcement of the court’s contempt order and denied her motion to certify the contempt order for appeal.


Keywords: LGBT, marriage licenses, litigation, Obergefell, Kentucky, same-sex marriage

Nick Kacprowski is with Alston Hunt Floyd & Ing in Honolulu, Hawaii.

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