Governor who praised Kim Davis in gay marriage protest wants her to pay state's legal fees

Andrew Wolfson | Courier Journal

Show Caption Hide Caption Kentucky Governor Removes County Clerks' Names From Marriage Licenses Gov. Matt Bevin stated he wanted to protect the 'sincerely held religious beliefs of all Kentuckians.'

Gov. Matt Bevin hailed former Rowan County Clerk Kim Davis for standing up for religious liberty when she refused to issue marriage licenses to same-sex couples.

But now his lawyers say she should foot the bill for nearly $225,000 in legal fees incurred by couples who successfully sued her in 2015 for refusing to follow the U.S. Supreme Court’s ruling establishing a right to gay marriage.

In a dispute over fees to be argued Thursday at the U.S. 6th Circuit Court of Appeals, Bevin’s outside counsel, Palmer G. Vance II, says Davis’ local policy "defied the unequivocal mandate issued by the Supreme Court."

"The local policy also undermined the commonwealth of Kentucky’s interest in upholding the rule of law," Vance wrote in a brief. "As a result, the Commonwealth cannot bear liability for any attorneys’ fees related to challenges to the legality of this local policy."

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A federal district judge in 2017 held that the couples suing Davis for marriage licenses clearly prevailed and that the state of Kentucky must pay their fees and costs. Bevin appealed that ruling, seeking to shift the bill to the Rowan County Clerk’s Office. Davis acted alone, without any state support, the governor’s lawyers said.

Bevin once called Davis "an inspiration ... to the children of America."

In a statement, his general counsel, Steve Pitt, said Bevin doesn’t believe Davis acted unconstitutionally and continues to support her actions.

Pitt said outside counsel, hired by former Democrat Gov. Steve Beshear's administration, have taken no position on whether she acted unconstitutionally.

Still, Pitt said: "The federal court has held that she violated the plaintiffs’ constitutional rights and that the state must pay the ACLU legal fees incurred as a result. Our outside counsel have only argued, given the court’s ruling, that if constitutional rights were violated, the taxpayers of Kentucky are not responsible to pay the ACLU’s attorney fees."

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Davis’ lawyer, Roger Gannam, said in a brief that the state should bear the fees because "marriage licensing is a quintessentially and exclusively state-level function in Kentucky."

In an email, Gannam said that the governor's office, as well as Davis and Rowan County, agree that the ACLU shouldn't be awarded any attorney fees; he said the disagreement is about who should have to pay them if the appeals court upholds the award. Davis individually is not on the hook for fees, he said.

In the governor’s brief, filed in May, Vance said Davis had an "independent and sworn duty to uphold the law as an elected county officer. If fees are awarded, they must be the responsibility of the Rowan County Clerk’s Office, which should be deterred from engaging in conduct that violates civil rights – and leads to costly litigation."

After the Supreme Court’s same-sex marriage decision, Davis said she held religious objections to gay marriage and no longer would grant the marriage licenses in Rowan County. Her protest became international news when U.S. District Judge David Bunning jailed her for several days for contempt of court.

Ultimately, she agreed to a compromise allowing one of her deputies who had no objections to issuing a modified marriage license to anyone who wanted it. Later, the state legislature removed county clerks’ names from Kentucky marriage licenses.

Davis was defeated in November, losing to challenger Elwood Caudill.

Related: Kim Davis to enter Christian ministry after election loss, lawyer says

See also: Who is Elwood Caudill? He's the man who beat anti-gay clerk Kim Davis



Follow Andrew Wolfson on Twitter @adwolfson