Motion: Lawyers for former KY clerk in same-sex marriage case should face sanction

Attorneys for a former Kentucky county clerk who refused to issue marriage licenses to same-sex couples should have to pay $21,675 for pursuing frivolous appeals, a lawyer for one couple has argued.

Lexington attorney Michael J. Gartland filed a motion Thursday seeking the payment as a sanction against attorneys for Kim Davis, the former Rowan County clerk.

Davis received international attention in 2015 when she cited her religious opposition to same-sex marriage in refusing to issue licenses to gay couples, even though the U.S. Supreme Court had ruled same-sex marriage legal.

Couples she refused to give licenses sued her in federal court in 2015. The case is still pending because of appeals on several issues.

The case passed one milestone last March when U.S. District Judge David L. Bunning issued a summary judgment in favor of two same-sex couples. The men were turned away a total of eight times at Davis’ office.

“The question is simple — did Davis knowingly violate the law? The answer here is clear — yes,” Bunning wrote in his March decision.

Bunning rejected an argument that it would violate Davis’ religious rights to have to issue a marriage license to a same-sex couple.

“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,” the judge wrote.

Davis appealed the ruling to the U.S. 6th Circuit Court of Appeals. A three-judge panel upheld the ruling and the full court declined to review that decision.

In his motion filed this week, Gartland argued Davis’ lawyers should be penalized because the appeals related to the summary judgment ruling were “wholly without merit” and had no reasonable chance of oveturning the ruling.

Davis is represented by Liberty Counsel, a Florida-based Christian organization whose work includes representing people in religious-liberty cases.

The motion for sanctions names Liberty Counsel and Roger Gannam, an attorney with the organization.

Sanctions against them are justified “for appealing the Summary Judgment Order for the improper purpose of harassment or delay with no reasonable expectation of altering that order based on law or fact,” Gartland argued in his motion.

Gartland said the Supreme Court decision legalizing same-sex marriage was not ambiguous.

“For a reasonable official, (it) left no uncertainty. For Davis, however, the message apparently didn’t get through,” Gartland wrote. “And it still doesn’t appear to have gotten through.”

Gartland said the cost for him and two paralegals to respond to the frivolous motions by Davis’ attorneys since early April was $21,675.01. If granted, the payment would be to Gartland’s firm, DelCotto Law Group PLLC.

Liberty Counsel and Gannam have not responded to the sanctions motion in court, but Mat Staver, an attorney with the organization, said in an email to the Herald-Leader that none of Davis’ appeals have been frivolous.

“The Supreme Court has been very protective of religious freedom and that issue is central to this case. This case has a strong potential of reaching the Supreme Court,” Staver said.

Davis, an evangelical Christian, has said she believes marriage is only proper between a man and a woman and that issuing a marriage license to a same-sex couple would violate her religious convictions.

Staver said Gartland’s motion for sanctions is itself frivolous, and that he might seek sanctions as a result.

A deputy clerk in Davis’ office issued licenses to same-sex couples while she was in jail several days for contempt of court for refusing to do so.

Davis lost reelection in 2018.

The remaining issue in the case at this point is how much money she will have to pay the couples suing her. They have not specified an amount of damages.

Bunning scheduled a hearing late next month, where he will likely set a date for a trial on that issue.