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The former Kentucky county clerk who was jailed 10 years ago for refusing to issue marriage licenses to same-sex couples is now asking the Supreme Court to review its landmark decision that legalized same-sex marriage nationwide, with her attorney telling Fox News Digital there’s a “good chance” it will end up on their docket.
Kim Davis, a devout Christian, made national headlines in 2015 when she refused to sign the marriage licenses of same-sex couples over her religious belief that marriage is between one man and one woman. Davis’ lawyer, Mat Staver, is helping her appeal a ruling that she must pay $360,000 in legal fees and expenses to plaintiffs David Ermold and David Moore.
“The First Amendment should be an absolute defense to Kim Davis. And secondly, we’re asking the Supreme Court to overturn Obergefell, the 2015 decision that ultimately caused this problem in the first place,” Staver told Fox News Digital.
“For them not to review the matter I think is terrible for Kim Davis and also terrible for the country because they’ve damaged the Constitution and only the court can fix it,” Staver added.
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Former Kentucky county clerk Kim Davis speaks during an interview on Fox News Channel on Sept. 23, 2015. (Reuters/Brendan McDermid)
Staver also told Fox News Digital, “I think we have a good chance at having the Supreme Court take up this case because you have three of the justices still on the bench that were part of the four dissenters in 2015” in Obergefell v. Hodges, “including the chief justice, who gave a very strong dissent.”
“There’s only two justices still on the bench that were on the bench in the majority in 2015, and that would be Kagan and Sotomayor,” Staver added. “This is the case with the most compelling facts that can challenge and overturn Obergefell.”
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The case, if it reaches the Supreme Court, would be heard by Justices Clarence Thomas, John Roberts and Samuel Alito, who dissented to Obergefell v. Hodges; Justices Sonia Sotomayor and Elena Kagen, who affirmed the decision; and four newly appointed justices.
In March, a three-judge panel from the U.S. Court of Appeals for the Sixth Circuit wrote in a ruling that “As Davis sees it, issuing Plaintiffs a marriage license would have violated her own constitutionally protected religious beliefs; thus, she asserts, she cannot be held liable. We disagree.”
“Davis cannot raise a Free Exercise Clause defense because she is being held liable for state action, which the First Amendment does not protect,” the ruling added.
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Rowan County Deputy Clerk Nathan Davis, right, informs David Moore, center, and David Ermold that he won’t issue them a marriage license on Thursday, Aug. 13, 2015 at the Rowan County Clerk’s office in Morehead, Kentucky. (John Flavell/Lexington Herald-Leader/Tribune News Service via Getty Images)
A petition for writ of certiorari filed last month on behalf of Davis is appealing that decision.
“Obergefell was wrong when it was decided and it is wrong today because it was grounded entirely on the legal fiction of substantive due process,” the filing said.
“Overturning Obergefell would not undo any marriage licenses in effect at the time. All marriage licenses, including those between same-sex couples, would continue to be recognized. They would be ‘grandfathered.’ Going forward, marriage would return to the states as it was prior to Obergefell. It would be up to each state to define marriage,” it added.
William Powell, an attorney representing Ermold and Moore, and a Senior Counsel with the Institute for Constitutional Advocacy and Protection, told Fox News Digital that “We are confident the Supreme Court, like the court of appeals, will conclude that Davis’s arguments do not merit further attention.
Attorney Mat Staver told Fox News Digital he believes there is a “good chance” the Supreme Court will revisit its landmark Obergefell v. Hodges decision. (Fox News Digital)
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“Marriage equality is settled law,” he added.
Fox News Digital’s Maria Lencki contributed to this report.