The Kentucky clerk who refused to obey President Barack Obama’s 2015 order to pass out marriage licenses to gay couples is poised to win another victory in her long legal battle with state and federal governments after a federal judge refused to force her to pay the ACLU’s legal fees.
On March 6, U. S. Magistrate Judge Edward Atkins recommended against demands by the ACLU, telling the organization that Kim Davis was not liable to pay its $231,000 bill for attorney’s fees. In his ruling, Judge Atkins said the court holds “The plaintiffs are not ‘prevailing parties’… and are therefore not entitled to an award of attorneys’ fees.”
Citing her religious objections, Davis spent six days in jail in 2015 for refusing to issue marriage licenses to gay couples in August of 2015. As a result of the clerk’s objections, after his election and fulfilling a campaign promise, Kentucky Governor Matt Bevin signed an executive order eliminating the provision requiring a county clerk’s name and title to appear on a state marriage license. The Kentucky General Assembly later made the executive order permanent by an act of the legislature, thus eliminating the point of contention in the ACLU’s lawsuit.
As a result of the changes to the law, District Judge David Bunning had already dismissed Miller v. Davis, the case brought against the Rowan County Clerk Davis who refused to issue a marriage license to a gay couple, David Ermold and David Moore.
Davis, whose arrest sparked the #StandWithKim movement, is represented by Liberty Counsel, an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family. Liberty Counsel celebrated Judge Atkins’ recommendation.
“The ACLU and others still want to punish Kim Davis for daring to take a stand for religious liberty,” said Horatio Mihet, Liberty Counsel’s Vice President of Legal Affairs and Chief Litigation Counsel, “but today the court recognized that the ACLU does not deserve to get paid for its bullying. Kim Davis never violated her conscience, and she still has her job and her freedom—that is a win for Kim and for all Americans who want to perform public service without being forced to compromise their religious liberties.”
One of the factors leading to the recommendation concerns those changes made by the Kentucky legislature. Essentially, the case the ACLU brought against Davis became a moot point since Governor Bevin and the legislature changed the law. So the ACLU never actually won a final decision on the merits of its case and isn’t eligible to recoup its legal fees. A clear-cut win is the key to winning attorney’s fees in a civil rights lawsuit brought under 42 USC 1983.
A final decision on the ACLU’s demands has yet to be recorded, but the court will likely accept Atkins’ recommendation.
Follow Warner Todd Huston on Twitter @warnerthuston or email the author at igcolonel@hotmail.com.
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