ASHLAND, Ky. — Eight years after then-Rowan County Clerk Kim Davis created headlines across the country by refusing to issue marriage licenses to gay couples, the issue is not whether she violated their rights.
She did, U.S. District Judge David L. Bunning made plain in a ruling last year.
The question now is whether she will have to pay four men for the humiliation, mental anguish and emotional distress they say she caused them, and if so how much.
Testimony to decide those questions started Tuesday in federal court in Ashland.
Attorneys for the two couples said Davis should have to compensate them for violating their right to marry.
“Davis’ action violated the law and her action violated my clients’ Constitutional rights,” said Joseph Buckle, a Lexington attorney who represents one couple with Michael Gartland, also of Lexington.
However, Horatio Mihet, an attorney for Davis, said the couples suing Davis did not suffer financial damages, and that the case is really about “vengeance and retribution.”
It has taken eight years to get to a trial on potential damages for two couples because of several appeals of rulings in the case.
What happened in 2015?
Understanding the trial going on this week requires some history.
In late June 2015, the U.S. Supreme Court ruled that under the federal Constitution, same-sex couples had the same right to marry as heterosexual people.
County clerks in Kentucky issue marriage licenses.
But Davis, an evangelical Christian who believes that marriage is only between a man and a woman, said issuing a license to a gay couple with her name on it would violate her beliefs and rights.
She had her office stop issuing licenses to any couples for a time in order to avoid having to issue one to a gay couple.
Her office turned away several gay couples who came in for licenses, a controversy that led to demonstrations, national news coverage and several days in jail for Davis after Bunning held her in contempt of court for refusing to issue marriage licenses.
A deputy clerk who did not object to issuing the licenses ultimately did so. Kentucky lawmakers later changed the rules to remove county clerks’ names from marriage licenses.
However, several couples who had been turned away at Davis’ office in the summer of 2015 sued her.
In one case, the state of Kentucky had to pay $225,000 to attorneys who represented eight people who had sued her, because her authority to issue licenses came from the state.
Couples testify to ‘stress and anxiety’
The couples suing Davis are David Ermold and David Moore, and James Yates and Will Smith, both of Rowan County.
Davis or others in her office turned away Ermold and Moore three times before a deputy clerk finally issued them a license in September 2015, and Yates and Smith were turned away five times before they got a license.
The couples who testified Tuesday, who said they had been in committed relationships for years before the Supreme Court decision, said the ruling was cause for celebration, only to have their hopes crushed when they couldn’t get a license.
Ermold, who has taught at the University of Pikeville and Morehead State University, was emotional as he described being publicly turned away for a license.
“I have a lot of stress and anxiety because of what happened,” he said. “Ms. Davis is responsible for humiliating us in public.”
Ermold said the first time he and Moore went to get a license and Davis said no, Moore told her she had likely issued licenses to murderers, rapists and pedophiles.
Davis responded that if it was a straight couple that was okay, he said.
“You truly feel like you’re less than a person,” Moore testified.
Ermold said Davis’ action fueled bias against gay people in the community. People opposed to same-sex marriage yelled homophobic slurs at Ermold, Moore, Yates and Smith others when they went to Davis’ office.
“Personal safety became more of a concern,” Yates testified.
Ermold said he has a lingering fear that someone will burn his house or harm his animals. He was diagnosed with post-traumatic stress disorder (PTSD) before the controversy, but Davis’ actions amplified it, Ermold said.
“I live in a perpetual state of fear,” he said.
Smith, who suffered childhood abuse, had been diagnosed with PTSD, bipolar disorder and social anxiety years before 2015, but testified the controversy over getting a license from Davis’ office hurt his health.
Smith said he had been stable before Davis turned him away, but his depression got worse and he had panic attacks afterward. He had to change his medication and go to therapy more often, Smith said.
“It hurts a lot just to think about it,” Smith said.
‘… a heaven or hell issue’
Mihet told jurors that Davis faced condemnation, slurs and even threats as a result of her stand, and was already punished by going to jail for several days.
Mihet said Smith and Ermold did not offer any medical evidence to support the claims that Davis’ actions made their mental or emotional conditions worse, and that none of the men could set out specifically how they were damaged financially.
Mihet also said both couples went to Davis’ office multiple times even though they knew she was not issuing marriage licenses.
The four complained of being publicly embarrassed, but they taped their trips to the clerk’s office, posted videos on social media and gave media interviews, Mihet said.
“They created a spectacle,” said Mihet, who represents Davis with Daniel Schmid and A.C. Donahue.
Liberty Counsel, a Christian organization, represents Davis.
Northern Kentucky attorneys Rene Heinrich and Kash Stilz Jr. represent Yates and Smith.
In testimony Tuesday, Davis said she was not trying to humiliate the couples who tried unsuccessfully to get marriage licenses at her office. She described them as nice people and said she prayed for them.
She said she simply didn’t want a license with her name on it to go to a gay couple.
“For me it was a heaven or hell issue,” said Davis, who lost reelection in 2018.
In his earlier ruling, Bunning rejected that Davis had a justification for turning away gay couples seeking marriage licenses.
“Ultimately, this Court’s determination is simple — Davis cannot use her own constitutional rights as a shield to violate the constitutional rights of others while performing her duties as an elected official,” he wrote.
The trial is scheduled to continue Wednesday with further testimony from Davis.