|Hate group leaders Mat Staver and Tony Perkins with Kim Davis and Spouse|
At AFA's “news” blog, Charlie Butts writes: “ACLU poised to lose last attack on Ky. clerk.” Mr. Butts explains:
The American Civil Liberties Union (ACLU) is not likely to prevail in its latest salvo against Kentucky clerk Kim Davis.That is correct. The ACLU, on behalf of April Miller et al, won the action captioned Miller v. Davis and is thus entitled to reasonable attorney's fees. Federal judges can be enormously stingy when it comes to fee awards but the ACLU is entitled. Hate group leader Mat Staver (of Liberty Counsel) doesn't see it that way:
The Rowan County Clerk served five days in jail rather than have her name on a license for a couple’s same-sex “marriage.”
Now, the ACLU – which sued Davis over her stance is trying to collect $233,000 in legal fees and costs.
"They're trying to actually get the court to reopen the case that both the federal court of appeals and the lower court already dismissed and closed, so they've got a big hurdle to overcome,” the legal expert contends. “They're wanting to get attorneys fees for something they didn't do, so that's why the cases have been dismissed, and they're just throwing this up as a Hail Mary pass hoping something will happen in their favor."I am amused that Mr. Butts would refer to Mr. Staver as a “legal expert.” Nevertheless Staver is probably wrong. He is certainly wrong in suggesting that this is a “Hail Mary pass” to create an indeterminable outcome. Simply stated, the issue revolves around who effectively won the case.
What happened is that Kim Davis suddenly got religion after three divorces. As a public official she decided unilaterally that her office would never issue a same-sex marriage license. Several couples took her to court and won. Federal District Court Judge David Bunning issued an injunction prohibiting Davis from refusing to issue marriage licenses to gay couples. At issue is 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress …In Obergefell, the Supreme Court established that gay couples have a constitutional right to marry. That right was being frustrated. Bunning (a conservative appointed by George W. Bush) had no other choice.
Staver went to the United States Court of Appeals for the Sixth Circuit requesting that the Court issue a stay on Bunning's injunction. The Court refused noting that Davis had no chance of prevailing on the merits for the same reasons that Bunning issued the injunction. Bunning subsequently jailed Davis for her failure to comply. Some of the deputy clerks agreed to issue the licenses and the issue was resolved.
Meanwhile, Staver continued to press the matter at the Sixth Circuit. At some point early in this process Davis' excuse became the fact that her name was printed on the license application. She would not permit deputy clerks from signing the applications. Even if this was Davis' real issue it is irrelevant. We go back to 42 U.S.C. § 1983 and what Davis was doing was illegal. In January, 2016 a new governor took Davis seriously and removed the clerk's name from the form. The Sixth circuit held that the matter was now moot. That does not constitute a legal victory for Davis or Staver. That was a political victory.
The bottom line is that Davis and Staver made it necessary for a federal court to intervene to protect the constitutional rights of gay couples. The Court did exactly what it was supposed to do and now the ACLU is entitled to those legal fees. They deserve them all and will probably get part. We'll see.