NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0388n.06
Nos. 22-5260/5261
FILED
UNITED STATES COURT OF APPEALS Sep 29, 2022
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
)
DAVID ERMOLD; DAVID MOORE (22-5260),
)
JAMES YATES; WILL SMITH (22-5261), )
Plaintiffs-Appellees, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
KIM DAVIS, Individually, )
) OPINION
Defendant-Appellant.
)
Before: GRIFFIN, WHITE, and BUSH, Circuit Judges.
GRIFFIN, Circuit Judge.
Over three years ago, we considered whether plaintiffs, two same-sex couples who sought
to marry in Rowan County, Kentucky, pleaded a plausible case that Kim Davis, then-Rowan
County Clerk, violated their clearly established right to marry when she declined to issue marriage
licenses based on her belief that same-sex marriage was immoral. They did, meaning Davis was
not entitled to qualified immunity at the motion-to-dismiss stage. Ermold v. Davis, 936 F.3d 429,
432 (6th Cir. 2019). At the summary-judgment stage, discovery proved the facts plaintiffs pleaded.
Thus, Davis is still not entitled to qualified immunity, and we again affirm the district court.
I.
The basic facts of this case have not changed since the last time it was before us:
In the summer of 2015, Kim Davis was the County Clerk for Rowan County,
Kentucky. One of her responsibilities was to issue marriage licenses. But same-
sex marriage offended her religious beliefs, so when the Supreme Court recognized
Nos. 22-5260/5261, Ermold, et al. v. Davis
a constitutional right to same-sex marriage in Obergefell v. Hodges, [576 U.S. 644]
(2015), Davis took matters into her own hands.
One day after the Supreme Court released Obergefell, Davis stopped issuing
marriage licenses. She didn’t discriminate against same-sex couples, though; she
stopped issuing licenses altogether. That meant that when plaintiffs—two same-
sex couples who lived in Rowan County—sought marriage licenses from the
Clerk’s Office, they couldn't get them.
With a constitutional right to marry yet no ability to obtain marriage licenses within
Rowan County, plaintiffs sued Davis in her individual capacity and in her official
capacity as County Clerk. One of the couples also sued the County. Plaintiffs
sought damages for Davis’s violation of their right to marry.
***
Davis then moved to dismiss the complaints, arguing that sovereign immunity
shielded her from suit in her official capacity and that qualified immunity shielded
her from suit in her individual capacity. The district court sided with plaintiffs on
the qualified-immunity issue (ruling that the doctrine didn’t shield her) and with
Davis on the sovereign-immunity issue (ruling that the doctrine did).
Id. at 432–33. On appeal, we affirmed both rulings. Id. at 438.
The case then returned to the district court for discovery, during which Davis confirmed
key facts. She was the Rowan County Clerk in 2015, and she knew that the Supreme Court was
considering Obergefell that summer. Davis sought a marriage-license accommodation from the
state legislature because of her firmly held religious belief that marriage exists exclusively between
one man and one woman, but the legislature did not act on her request.
Davis became aware of the Supreme Court’s decision in Obergefell the day it was released.
That same day, then-Governor Steve Beshear wrote a letter to county clerks addressing the
decision and explaining that, effective that day, Kentucky would recognize same-sex marriages.
Beshear encouraged the clerks to “consult with your county attorney on any particular aspects
related to the implementation of the Supreme Court’s decision.” Davis read and understood that
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letter, and she spoke to the Rowan County Attorney, who advised her that she “had to issue the
license[s].”
Despite these instructions, Davis directed employees of her office to “stop[] issuing a
license to everybody.” It was her decision to implement this policy in Rowan County, not anyone
else’s, and she implemented the policy in direct response to the Obergefell decision.
The Yates plaintiffs tried to obtain a marriage license from the Rowan County Clerk’s
office five times but were denied each time. The Ermold plaintiffs tried three times and were
equally unsuccessful. On the Ermold plaintiffs’ final attempt, Davis explained that she could not
issue them a license “under God’s authority.” Eventually, both sets of plaintiffs were issued a
marriage license by a Rowan County Deputy Clerk while Davis was in jail for contempt of court.
The district court concluded that this discovery proved Davis violated plaintiffs’ clearly
established right to marry by denying their repeated requests for marriage licenses. Accordingly,
the court found that Davis was not entitled to qualified immunity. It went on to grant summary
judgment in plaintiffs’ favor on the merits of their claims, but left the amount of damages owed to
be decided by a jury. Davis now appeals the denial of qualified immunity.
II.
We review the district court’s ruling that Davis is not entitled to qualified immunity de
novo. Shanaberg v. Licking Cnty., 936 F.3d 453, 455 (6th Cir. 2019).
Qualified immunity shields public officials from personal liability under 42 U.S.C. § 1983
unless they “violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine
whether a defendant is entitled to qualified immunity, we must ask two questions: (1) “whether
the facts that a plaintiff has . . . shown . . . make out a violation of a constitutional right,” and
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(2) “whether the right at issue was ‘clearly established’ at the time of [the] defendant’s alleged
misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citation omitted).
Recall that plaintiffs alleged that “(1) the Fourteenth Amendment guarantees them the
right, as same-sex couples, to marry; (2) they sought marriage licenses from Davis, whom
Kentucky tasked with issuing those licenses; (3) under Kentucky law, they qualified for licenses;
and (4) Davis refused to license them.” Ermold, 936 F.3d at 435. That was enough to establish
an alleged violation of a constitutional right. Id. As the district court recognized and as we have
outlined above, those facts were proven in discovery, so plaintiffs have not only “alleged” but also
now “shown” that Davis violated their constitutional right to marry. Cf. Pearson, 555 U.S. at 232.
And, as we held three years ago, that right was “clearly established in Obergefell.” Ermold, 936
F.3d at 437. Therefore, the district court correctly determined that Davis is not entitled to qualified
immunity.
To the extent that Davis seeks to inject other issues into this appeal—largely based on the
allegation that her First Amendment rights were violated—we cannot consider them at this
juncture. Our jurisdiction is limited to considering “the legal issues that the [district court’s]
decision resolves in the course of denying qualified immunity—not other unrelated issues.”
DeCrane v. Eckart, 12 F.4th 586, 601–02 (6th Cir. 2021). We have now done so, and we may go
no further.
Davis resists this conclusion by requesting that we exercise our “pendent appellate
jurisdiction” over her arguments because they are “inextricably intertwined” with the qualified
immunity analysis. See id. at 602. We disagree. Qualified immunity asks only two questions:
did Davis violate plaintiffs’ constitutional rights, and if so, were those rights clearly established?
It does not ask whether Davis had a justification for taking the action (or, as here, inaction) that
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violated plaintiffs’ constitutional rights. But that is exactly what Davis asks us to adjudicate:
whether she has an affirmative “free exercise defense under the First Amendment” for her decision
not to issue marriage licenses. Such a defense is not intertwined with qualified immunity; rather,
it “can be effectively reviewed after a final judgment.” Campbell v. Cheatham Cnty. Sheriff’s
Dep’t, --- F.4th ---, 2022 WL 3714606, at *2 (6th Cir. Aug. 29, 2022); see also DeCrane, 12 F.4th
at 602 (noting that a defense was not intertwined because “resolution of the immunity issue [did]
not affect the defense’s viability”). Therefore, we lack jurisdiction to consider her arguments.
III.
For these reasons, we affirm the judgment of the district court.
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