                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 19a0209p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


DAVID ERMOLD; DAVID MOORE,                                        ┐
                                Plaintiffs-Appellees (17-6119),   │
   Plaintiffs-Appellees/Cross-Appellants (17-6119 & 17-6233),     │
                                                                  │
       v.                                                         │
                                                                  >       Nos. 17-6119/6120/6226/6233
                                                                  │
KIM DAVIS, Individually,                                          │
                               Defendant-Appellant (17-6119),     │
                                                                  │
ELWOOD CAUDILL, JR., Clerk of Rowan County, Kentucky,             │
   Defendant-Appellant/Cross Appellee (17-6119 & 17-6233).        │
                                                                  │
___________________________________________________               │
WILL SMITH; JAMES YATES,                                          │
                                Plaintiffs-Appellees (17-6120),   │
                                                                  │
   Plaintiffs-Appellees/Cross-Appellants (17-6120 & 17-6226),
                                                                  │
       v.                                                         │
                                                                  │
KIM DAVIS, Individually,                                          │
                                                                  │
                               Defendant-Appellant (17-6120),
                                                                  │
ELWOOD CAUDILL, JR., Clerk of Rowan County, Kentucky,             │
                                                                  │
   Defendant-Appellant/Cross-Appellee (17-6120 & 17-6226),        │
                                                                  │
ROWAN COUNTY, KENTUCKY,
                                                                  │
                                Defendant-Appellee (17-6226).     ┘

                        Appeal from the United States District Court
                      for the Eastern District of Kentucky at Ashland.
                   No. 0:15-cv-00046—David L. Bunning, District Judge.

                                   Argued: January 31, 2019

                              Decided and Filed: August 23, 2019

                   Before: GRIFFIN, WHITE, and BUSH, Circuit Judges.
 Nos. 17-6119/6120/6233/6226           Ermold et al. v. Davis et al.                      Page 2


                                       _________________

                                            COUNSEL

ARGUED: Roger K. Gannam, LIBERTY COUNSEL, Orlando, Florida, for Kim Davis and
Elwood Caudill, Jr. Michael J. Gartland, DELCOTTO LAW GROUP PLLC, Lexington,
Kentucky, for David Ermold and David Moore. W. Kash Stilz, Jr., ROUSH & STILZ, P.S.C.,
Covington, Kentucky, for James Yates and Will Smith. Mary Ann Stewart, ADAMS,
STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Rowan County.
ON BRIEF: Roger K. Gannam, Mathew D. Staver, Horatio G. Mihet, Kristina J. Wenberg,
LIBERTY COUNSEL, Orlando, Florida, for Kim Davis and Elwood Caudill, Jr. Michael J.
Gartland, DELCOTTO LAW GROUP PLLC, Lexington, Kentucky, for David Ermold and
David Moore. W. Kash Stilz, Jr., ROUSH & STILZ, P.S.C., Covington, Kentucky, for James
Yates and Will Smith. Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING,
PLLC, Covington, Kentucky, for Rowan County.

       GRIFFIN, J., delivered the opinion of the court in which WHITE, J., joined. BUSH, J.
(pp. 12–18), delivered a separate opinion concurring in part and in the judgment.

                                       _________________

                                             OPINION
                                       _________________

       GRIFFIN, Circuit Judge.

       At first glance, this case appears simple. When Kim Davis was County Clerk for Rowan
County, Kentucky, the Supreme Court recognized a constitutional right to same-sex marriage.
One of Davis’s duties as County Clerk was to issue marriage licenses. But she believed same-
sex marriage was immoral, so she stopped issuing them. Plaintiffs, two couples who sought
licenses and were rebuffed, sued her for depriving them of their right to marry.

       But Davis claims she is immune from suit, which complicates matters. That’s because
the law treats Davis not as one person, but as two: an official and an individual. The doctrine of
sovereign immunity shields Davis as an official if, when refusing to issue marriage licenses, she
acted on Kentucky’s behalf—but not if she acted on Rowan County’s behalf. And the doctrine
of qualified immunity shields Davis as an individual if she didn’t violate plaintiffs’ right to
marry or, if she did, if the right wasn’t clearly established when she acted.
 Nos. 17-6119/6120/6233/6226           Ermold et al. v. Davis et al.                          Page 3


         And this case comes to us at a relatively early stage. The district court hasn’t issued a
final ruling, a trial hasn’t occurred, and the parties haven’t completed discovery. That means we
don’t look at evidence; we look at allegations. So we ask not whether Davis definitively violated
plaintiffs’ rights but whether they adequately allege that she did.

         The district court ruled that Davis, as an official, acted on Kentucky’s behalf, meaning
sovereign immunity protected her. Plaintiffs dispute that ruling. The court also ruled that
plaintiffs pleaded a plausible case that Davis, as an individual, violated their right to marry and
that the right was clearly established, meaning qualified immunity didn’t protect her. Davis
disputes that ruling. We agree with the district court on both issues and therefore affirm.

                                                 I.

         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 a constitutional right to same-sex
marriage in Obergefell v. Hodges, 135 S. Ct. 2584 (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.

         In a different lawsuit over Davis’s conduct (which is before us on a challenge to an
attorney’s-fees award), the district court enjoined Davis from refusing to issue marriage licenses.
With the injunction in place, plaintiffs obtained marriage licenses.
 Nos. 17-6119/6120/6233/6226          Ermold et al. v. Davis et al.                       Page 4


       A challenge to that injunction came to our court. Before we could rule on the dispute,
however, Kentucky legislators changed the law in a way that convinced Davis to issue licenses
without objection. See 2016 Kentucky Laws Ch. 132 (SB 216). So Davis asked us to dismiss
her appeal, which we did. Miller v. Davis, 667 F. App’x 537, 538 (6th Cir. 2016).

       The district court read our opinion so broadly that it dismissed plaintiffs’ cases as well,
ruling that there was no longer a legal dispute because Davis had agreed to issue marriage
licenses. Two plaintiffs appealed the dismissal, and we reversed because they sought damages
for the past deprivation of their right to marry, which meant there was still a dispute to resolve.
Ermold v. Davis, 855 F.3d 715, 720 (6th Cir. 2017).

       On remand, the district court also re-opened the other two plaintiffs’ case. 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).

       Davis appealed the denial of qualified immunity, and plaintiffs appealed the grant of
sovereign immunity. After the parties submitted their briefs, Elwood Caudill, Jr. replaced Davis
as Rowan County Clerk and thus became a defendant and cross-appellee in his official capacity.

                                                II.

       We begin with sovereign immunity. Unless a State consents to be sued, it enjoys
immunity from private lawsuits seeking damages. U.S. Const. amend. XI; Crabbs v. Scott, 786
F.3d 426, 428 (6th Cir. 2015). And because lawsuits against state officials in their official
capacities equate to lawsuits against the State itself, see Kentucky v. Graham, 473 U.S. 159, 165–
66 (1985), sovereign immunity shields state officials as well. But the doctrine doesn’t extend to
counties and county officials. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 280 (1977).

       Whether sovereign immunity protects an official from being sued in her official capacity,
then, depends on her role in government. Sometimes the inquiry is easy. A governor obviously
 Nos. 17-6119/6120/6233/6226            Ermold et al. v. Davis et al.                     Page 5


is a state official; a mayor obviously is not. But not all officials operate within jurisdictional
silos—some have hybrid duties in which they serve both state and local government. In such
scenarios, immunity depends on which entity the official serves when engaging in the challenged
conduct. McMillian v. Monroe Cty., 520 U.S. 781, 785 & n. 2 (1997). And that inquiry turns on
how state and local law treat the official. Id. at 786.

          Here, plaintiffs contend that when Davis stopped issuing marriage licenses, she acted on
the County’s behalf. Caudill and the County, however, claim Davis acted on Kentucky’s behalf.
To resolve this dispute, we must examine and balance six factors:

                 1. The State’s potential liability for a judgment;
                 2. How state statutes and courts refer to the official;
                 3. Who appointed the official;
                 4. Who pays the official;
                 5. The degree of state control over the official; and
                 6. Whether the functions involved fell within the traditional
                    purview of state or local government.

Crabbs, 786 F.3d at 429.

          The first and fourth factors are neutral. Kentucky law appears silent on which level of
government must pay for a judgment against a county clerk or clerk’s office, and the parties have
provided us nothing but tangentially related hypotheticals about who might pay. Clerk’s offices
in Kentucky are self-funded. They operate using money from the fees they collect—fees that
come from both state and county sources. So both state and county money paid Davis’s salary.
And if plaintiffs secured a judgment against Davis in her official capacity (now Caudill in his
official capacity) and the Clerk’s Office paid the judgment with the money it controls, that
money would have both state and local origins.

          The second and third factors weigh in favor of Davis having acted on the County’s
behalf.    The Kentucky Constitution refers to clerks as county officials.      Ky. Const. § 99.
Kentucky courts have also generally characterized county clerks as county officials. See, e.g.,
Carroll v. Reed, 425 S.W.3d 921, 924 (Ky. Ct. App. 2014); St. Matthews Fire Prot. Dist. v.
Aubrey, 304 S.W.3d 56, 60 (Ky. Ct. App. 2009). County residents elect county clerks. Ky.
 Nos. 17-6119/6120/6233/6226          Ermold et al. v. Davis et al.                       Page 6


Const. § 99. And if there is a vacancy, a county judge or executive appoints a new clerk. Ky.
Rev. Stat. § 63.220. But these factors offer little help because they pertain to county clerks
generally, and no party contests that county clerks mostly work on the behalf of counties—hence
the title county clerk. What we need is legal authority specific to marriage licensing.

       The fifth and sixth factors give us that authority, and they show that Davis acted on the
State’s behalf. Only Kentucky can discipline county clerks. See Ky. Const. § 68; Ky. Rev. Stat.
§§ 402.990(6), 522.020–030; Lowe v. Commonwealth, 60 Ky. 237 (Ky. 1860). And Kentucky
has “absolute jurisdiction over the regulation of the institution of marriage.” Pinkhasov v.
Petocz, 331 S.W.3d 285, 291 (Ky. Ct. App. 2011) (citations omitted). Indeed, Kentucky law
governs everything about marriage. It defines marriage and sets eligibility requirements. Ky.
Rev. Stat. §§ 402.005, 402.010, 402.020. It vests courts with the authority to declare certain
marriages void. Id. at § 402.030. It describes who may solemnize a marriage and requires a
couple to obtain a marriage license prior to marrying. Id. at §§ 402.050, 402.080. It sets out the
process for licensing and recording a marriage. Id. at §§ 402.100–402.240. And specific to
Davis, Kentucky law vests county clerks with the duty of issuing marriage licenses, recording
marriage certificates, and reporting marriages.      Id. at §§ 402.080, 402.220, 402.230.      So
Kentucky controls every aspect of how county clerks issue marriage licenses; Rowan County has
no say whatsoever.

       Plaintiffs acknowledge Kentucky’s general control over marriage, but they contend that
when Davis refused to issue licenses, she made a discretionary policy on Rowan County’s
behalf. If true, sovereign immunity wouldn’t shield Davis because when an official applies state
law that leaves the method of application to her discretion, she acts on behalf of local
government.

       Perhaps the best example of this principle is Brotherton v. Cleveland, 173 F.3d 552 (6th
Cir. 1999). There, Ohio law allowed county coroners to remove corneas for medical use. Id. at
555. The law didn’t specify the process for doing so, but it permitted removal only when the
coroner had no knowledge of an objection by the decedent or certain others. Id. at 556. One
coroner established a policy of intentional ignorance to potential objections, which meant his
subordinates didn’t review medical records or paperwork pertaining to a corpse before removing
 Nos. 17-6119/6120/6233/6226           Ermold et al. v. Davis et al.                         Page 7


its corneas. Id. When sued in his official capacity for making that policy, the coroner claimed
that sovereign immunity protected him from suit. Id. at 562. We rejected his argument, holding
that he had acted without state compulsion, had selected a policy for his county, and had thus
acted on the county’s behalf, not the State’s. Id. at 567.

        In comparing Davis’s actions to those of the coroner in Brotherton (and to other, similar
cases), plaintiffs conflate discretion with insubordination. Whereas Ohio’s cornea-harvesting
law left to officials the method of application, Kentucky’s marriage-licensing laws gave county
clerks no wiggle room. Kentucky required Davis to issue marriage licenses to eligible couples.
See, e.g., Ky. Rev. Stat. § 402.100 (“Each county clerk shall make available to the public the
form prescribed by the Department for Libraries and Archives for the issuance of a marriage
license.”) (emphasis added); id. at § 402.110 (“In issuing the license the clerk shall deliver it in
its entirety to the licensee.” (emphasis added)); id. at § 402.080 (2017) (“The license shall be
issued by the clerk of the county in which the female resides at the time, unless the female is
eighteen (18) years of age or over or a widow, and the license is issued on her application in
person or by writing signed by her, in which case it may be issued by any county clerk.”)
(emphasis added). Plaintiffs have cited no authority suggesting that if a county official acting on
the State’s behalf fails to do her job, that failure transforms the source of her power from the
State to the county. Indeed, such a proposition would make little sense; for whom an official
acts has nothing to do with how well she acts. Davis’s refusal to issue licenses, then, did nothing
to change the government she acted for.

        Because Davis acted on Kentucky’s behalf when issuing (and refusing to issue) marriage
licenses, sovereign immunity protects her (and now Caudill, as the current county clerk) from an
official-capacity suit.

                                                 III.

        Next, we turn to qualified immunity, which shields a government official from a lawsuit
against her in her individual capacity if (1) she didn’t violate any of the plaintiff’s constitutional
rights or (2) the rights, if violated, weren’t “clearly established” at the time of the alleged
misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Put differently, the doctrine
 Nos. 17-6119/6120/6233/6226           Ermold et al. v. Davis et al.                        Page 8


protects “all but the plainly incompetent or those who knowingly violate the law.” White v.
Pauly, 137 S. Ct. 548, 551 (2017). Davis challenges the district court’s denial of her motion to
dismiss, which places our focus on plaintiffs’ allegations. If they adequately allege the violation
of a clearly established right, we must affirm. See Cahoo v. SAS Analytics Inc., 912 F.3d 887,
898–99 (6th Cir. 2019) (discussing the interplay between qualified immunity and the motion-to-
dismiss standard).

        That they do. Plaintiffs allege 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. Put differently, they identify the specific right they sought
to exercise, what they did to exercise it, who thwarted their efforts, and how she did so.
Plaintiffs therefore adequately alleged the violation of a constitution right.

        And that right was clearly established when Davis acted. To be clearly established, the
right’s contours must have been so obvious that a reasonable official would have known that her
conduct was out of bounds. Anderson v. Creighton, 483 U.S. 635, 640 (1987). This need for
clarity means the Constitution’s text, alone, is often insufficient to establish a right’s edges;
terms such as “liberty” and phrases such as “equal protection” are too general—too nebulous—to
give an official the notice she needs.         Constitutional law, then, regularly fills the void
constitutional text creates.    In other words, legal opinions that forge constitutional rights
frequently set their limits as well.

        Here, Obergefell both recognized the right to same-sex marriage and defined its contours.
The Court’s decree was as sweeping as it was unequivocal:

        [T]he right to marry is a fundamental right inherent in the liberty of the person,
        and under the Due Process and Equal Protection Clauses of the Fourteenth
        Amendment couples of the same-sex may not be deprived of that right and that
        liberty. The Court now holds that same-sex couples may exercise the fundamental
        right to marry. No longer may this liberty be denied to them.

Obergefell, 135 S. Ct. at 2604–05. The Court made no mention of a limit on that right, of an
exception to it, or of a multi-factor test for determining when an official violates it. For a
 Nos. 17-6119/6120/6233/6226          Ermold et al. v. Davis et al.                      Page 9


reasonable official, Obergefell left no uncertainty. For Davis, however, the message apparently
didn’t get through.

       And it still doesn’t appear to have gotten through: She now argues that Obergefell
doesn’t even apply to her conduct. Because she stopped issuing licenses to all couples regardless
of their sexual orientation, she claims, she “obviate[ed] any equal protection issue.” That might
be so, but the right to marry also arises from the Fourteenth Amendment’s Due Process Clause.
Obergefell, 135 S. Ct. at 2604 (“[T]he Equal Protection Clause, like the Due Process Clause,
prohibits this unjustified infringement of the fundamental right to marry. . . . [U]nder the Due
Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex
may not be deprived of that right and that liberty.”) (emphases added). So one could say that
Davis provided “equal protection of the laws,” U.S. Const., amend. XIV, § 1, but in reality, her
alleged conduct amounted to equal deprivation of the due-process right to marry. Because
Obergefell speaks to such deprivations, it applies with force here.

       Davis further contends that Obergefell doesn’t apply for another reason: Obergefell
involved a total ban on same-sex marriage, but here plaintiffs could’ve obtained marriage
licenses elsewhere in Kentucky. She also presents two other arguments with similar thrusts:
(1) The relevant inquiry is whether Kentucky violated plaintiffs’ right to marry, not whether she
violated it, and (2) Obergefell didn’t clearly establish a right to demand marriage licenses from
particular state officials. The common denominator is a claim that we should focus broadly on
Kentucky instead of narrowly on Davis.           Yet Davis provides no legal authority for that
proposition. We can find none. And we know why: that’s not how qualified immunity works,
and that’s not how constitutional rights work.

       Qualified immunity protects government officials from lawsuits against them in their
individual capacities. McCloud v. Testa, 97 F.3d 1536, 1539 n.1 (6th Cir. 1996). The focus of
the analysis, then, is on what the law requires of them individually. And nowhere in the
Constitution—or in constitutional law, for that matter—does it say that a government official
may infringe constitutional rights so long as another official might not have. All government
officials must respect all constitutional rights. And that means Obergefell’s holding applies not
 Nos. 17-6119/6120/6233/6226           Ermold et al. v. Davis et al.                       Page 10


just to monolithic governmental entities like Kentucky but to the officials acting for those entities
as well.

       Davis also asks us to apply rational-basis scrutiny to plaintiffs’ constitutional challenge.
She says her actions were objectively reasonable because Kentucky’s Religious Freedoms
Restoration Act, Ky. Rev. Stat. § 446.350, required her to accommodate her personal religious
opposition to same-sex marriage. This argument fails because, under Obergefell, the direct
prohibition of same-sex marriage didn’t trigger the tiers-of-scrutiny analysis typical in many
other constitutional inquiries.   “Rational basis” never appears in the Obergefell majority’s
opinion. Neither does “intermediate scrutiny.” And “strict scrutiny” appears only once: in a
reference to a Hawaii Supreme Court opinion during a discussion of how “[t]he ancient origins
of marriage confirm its centrality” and how the concept “has not stood in isolation from
developments in law and society.” Obergefell, 135 S. Ct. at 2597.

       On this point, the concurrence sees things differently.         Although Obergefell never
invoked the tiers of scrutiny, it reasons, the framework should still apply because Davis merely
burdened the right to marry. Sometimes the government regulates marriage without banning it,
the concurrence notes, and Obergefell didn’t overrule that swath of caselaw. Thus, because
plaintiffs could have obtained a license in another county and used it to wed within Rowan
County, the argument goes, Davis didn’t ban marriage. And because she didn’t ban marriage,
the argument continues, Obergefell’s method of analysis doesn’t apply to her actions.

       Yet Obergefell answered two questions, the first of which was “whether the Fourteenth
Amendment requires a State to license a marriage between two people of the same sex.” Id. at
2593. The Court said “yes.” Id. at 2607. Obergefell therefore condemned the very action Davis
took—refusing to license same-sex marriage—and did so without ever asking what government
interest that refusal served or examining the relationship between the refusal and any proffered
interest(s). This move “b[roke] sharply with decades of precedent.” Id. at 2618–19 (Roberts,
C.J., dissenting).   Obergefell, then, didn’t abolish the tiers of scrutiny for all marriage
restrictions. But it did jettison them for actions such as Davis’s.
 Nos. 17-6119/6120/6233/6226          Ermold et al. v. Davis et al.                       Page 11


       Davis’s request that we apply rational-basis scrutiny fails for a second reason as well. To
be sure, Obergefell might have created “serious questions about religious liberty,” 135 S. Ct. at
2625, (Roberts, C.J., dissenting), but it said nothing to suggest that government officials may
flout the Constitution by enacting religious-based policies to accommodate their own religious
beliefs. Davis provides no legal support for her contention that Kentucky’s Religious Freedoms
Restoration Act required her to do what she did. Her reading of the Act is a subjective one and,
as far as we can tell, one no court has endorsed. In the presence of Obergefell’s clear mandate
that “same-sex couples may exercise the fundamental right to marry,” 135 S. Ct. at 2605, and in
the absence of any legal authority to support her novel interpretation of Kentucky law, Davis
should have known that Obergefell required her to issue marriage licenses to same-sex couples—
even if she sought and eventually received an accommodation, whether by legislative
amendment changing the marriage-license form or by judicial decree adopting her view of the
interplay between the Constitution and Kentucky law.

       In short, plaintiffs pleaded a violation of their right to marry: a right the Supreme Court
clearly established in Obergefell.     The district court therefore correctly denied qualified
immunity to Davis.

                                                IV.

       Finally, Davis argues that because plaintiffs haven’t pleaded a violation of a
constitutional right, the district court lacked subject-matter jurisdiction. As discussed above,
plaintiffs have adequately pleaded a violation of their right to marry. More importantly, Davis
conflates the merits of a claim with its source. Plaintiffs sued Davis under 42 U.S.C. § 1983.
Section 1983 is a federal law. That means plaintiffs asserted claims “arising under the . . . laws .
. . of the United States.” 28 U.S.C. § 1331. And district courts have original jurisdiction to
resolve such claims. Id. Put differently, if a claim is ultimately unsuccessful, jurisdiction to
resolve it doesn’t vanish.

                                                V.

       For these reasons, we affirm the district court’s grant of sovereign immunity and denial
of qualified immunity.
 Nos. 17-6119/6120/6233/6226          Ermold et al. v. Davis et al.                        Page 12


                 __________________________________________________

                   CONCURRING IN PART AND IN THE JUDGMENT
                 __________________________________________________

       JOHN K. BUSH, Circuit Judge, concurring in part and in the judgment. I concur fully in
the Majority’s treatment of the sovereign immunity issue.         I also concur in the Majority’s
disposition of qualified immunity, though I follow a different route to that conclusion.

       In the Majority’s view, Kim Davis banned same-sex marriage in Rowan County plain and
simple, and Obergefell v. Hodges, 135 S. Ct. 2584 (2015) abolished tiers of scrutiny in the
analysis of bans on same-sex marriage. Therefore, the Majority does not apply tiers-of-scrutiny
analysis to Davis’s actions, which were per se unconstitutional under Obergefell. Davis is not
entitled to qualified immunity because Obergefell clearly established that Davis’s conduct was
unconstitutional, and she may not rely on Kentucky’s Religious Freedom Restoration Act
(“KRFRA”), Ky. Rev. Stat. § 446.350.

       I agree that Davis violated Plaintiffs’ constitutional rights and is not entitled to qualified
immunity. But, unlike the Majority, I don’t find that Davis’s actions constituted an outright ban
of same-sex marriage, and I believe they should be reviewed using tiers-of-scrutiny analysis.
Her conduct, however, does not survive even rational-basis review because of her anti-
homosexual animus, which is not a legitimate basis for government action under Romer v.
Evans, 517 U.S. 620, 632 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003).                  Romer,
Lawrence, and Obergefell together clearly established that Davis could not deny marriage
licenses to Plaintiffs based on their sexual orientation; therefore, Davis was properly denied
qualified immunity. I express no opinion on whether Davis may have been entitled to an
exemption under KRFRA or what that exemption may have looked like because she never
properly invoked the protections of the statute.

                                                   I.

       There is no dispute that Davis, confronted by a conflict between her conscience and the
dictates of Obergefell, ceased issuing marriage licenses in Rowan County. The Majority states
that in doing so, Davis “depriv[ed] [Plaintiffs] of their right to marry.” Majority Op. at 2.
 Nos. 17-6119/6120/6233/6226         Ermold et al. v. Davis et al.                       Page 13


According to the Majority, we must apply Obergefell to Davis’s actions with the understanding
that she effected a “total ban on same-sex marriage” within Rowan County. Majority Op. at 9.
The facts, however, are more nuanced than that.

       The Commonwealth of Kentucky has two requirements for a valid marriage—licensure
and solemnization:

       [T]he General Assembly intended two essential requisites of a legally valid civil
       marriage which are inviolable. First, the parties intending to be married must
       obtain a marriage license from a county clerk. Second, having obtained a
       marriage license, the parties intending to be married must solemnize their intent to
       be married before a person or society believed in good faith to possess authority
       to solemnize the marriage.

Pinkhasov v. Petocz, 331 S.W.3d 285, 294 (Ky. Ct. App. 2011). It is true that Davis prevented
Plaintiffs from acquiring marriage licenses in Rowan County. However, a marriage license
issued by any county clerk, in any county in Kentucky, is valid throughout the entire
Commonwealth. See Ky. Rev. Stat. § 402.080. Thus, Davis did not (and could not) bar
Plaintiffs from getting married in Rowan County. Nothing prevented each Plaintiff couple from
travelling outside Rowan County, obtaining a marriage license from a different county clerk, and
returning to Rowan County to solemnize their marriage.

       Plaintiffs do not dispute this, but they hypothesize that Davis’s actions might have
worked a total marriage ban upon a certain class of marriage license seekers, namely those
Rowan County residents who could afford to travel to the Rowan County Courthouse but not to
the courthouse of an adjacent county. However, these hypothetical plaintiffs are not before us.
In analyzing this issue, I would take Plaintiffs at their word: they were entitled to a marriage
license but were prevented from getting one in Rowan County. They suffered a hardship, to be
sure. What they did not suffer was a prohibition on getting married.

                                               II.

       Does this distinction make a difference? It may with regard to whether tiers-of-scrutiny
analysis applies. The Majority is correct that the Obergefell decision never uses the words
“rational basis” or “intermediate scrutiny,” and refers to “strict scrutiny” only once, in a non-
 Nos. 17-6119/6120/6233/6226            Ermold et al. v. Davis et al.                          Page 14


substantive manner. See Majority Op. at 10. But the fact that the Supreme Court held in
Obergefell that a total ban of same-sex marriage was per se unconstitutional, does not necessarily
mean that tiers-of-scrutiny analysis is inapplicable for review of a marriage regulation that is less
than a total ban. I don’t believe that the Supreme Court would abolish tiers-of-scrutiny analysis
for all marriage regulations without explicitly telling us it was doing so. In any event, as we
have noted, “the Supreme Court itself does not seem terribly bound by the rigid rules of tiering.
The lower courts are bound, however, even though the Supreme Court remains free to create new
levels of scrutiny or ignore old ones.” Montgomery v. Carr, 101 F.3d 1117, 1123 (6th Cir.
1996).

         I therefore believe we should apply tiers-of-scrutiny analysis to Davis’s conduct. This
naturally raises the question: what level of scrutiny should govern?

         Even—especially—in the wake of Obergefell, there is some debate over the nature of the
right to marriage under our Constitution. There are several lines of cases recognizing this right
on different constitutional grounds. First, there is a substantive due process right to marriage.
See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (“These statutes also deprive the Lovings of
liberty without due process of law in violation of the Due Process Clause of the Fourteenth
Amendment. The freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men.”). Second, there is an associational
right to marriage. See, e.g., Roberts v. United States Jaycees, 468 U.S. 609, 619–20 (1984)
(“The personal affiliations that exemplify these considerations, and that therefore suggest some
relevant limitations on the relationships that might be entitled to this sort of constitutional
protection, are those that attend the creation and sustenance of a family[, such as] marriage . . . .
[O]nly relationships with these sorts of qualities . . . have led to an understanding of freedom of
association as an intrinsic element of personal liberty.”). And third, as with any other state
action, regulation of marriage will fall under the purview of the Equal Protection Clause of the
Fourteenth Amendment to the extent that the state regulates different groups differently. See
Reed v. Reed, 404 U.S. 71, 75–76 (1971) (“The Equal Protection Clause . . . den[ies] to States the
power to legislate that different treatment be accorded to persons placed by a statute into
different classes on the basis of criteria wholly unrelated to the object of the statute.”).
 Nos. 17-6119/6120/6233/6226           Ermold et al. v. Davis et al.                         Page 15


       In the contexts of substantive due process and associational rights, we analyze a marriage
restriction through a two-step process: “first, a court must ask whether the policy or action is a
direct or substantial interference with the right of marriage; second, if the policy or action is a
direct and substantial interference with the right of marriage, apply strict scrutiny, otherwise
apply rational basis scrutiny.” Montgomery, 101 F.3d at 1124 (citing Zablocki v. Redhail,
434 U.S. 374, 383–84 (1978)). In the equal protection context, we analyze disparate treatment
by the government this way: 1) we ask whether the restriction discriminates against a suspect or
semi-suspect class, and 2) if it discriminates against a suspect class, we apply strict scrutiny; if it
discriminates against a semi-suspect class, we apply intermediate scrutiny; if it discriminates
against neither a suspect nor a semi-suspect class, we apply rational basis review. See Clark v.
Jeter, 486 U.S. 456, 461 (1988); Loving, 388 U.S. at 11.

       Government may sometimes regulate marriage in ways that fall short of a complete ban,
but that still place burdens on marriage rights. For example, in Montgomery, we considered a
school district’s policy that forbade employees from being married to fellow employees. See
101 F.3d at 1118. Two employees of the school district married each other, and because of the
anti-nepotism policy, one of them was forced to take a job in a neighboring district. Id. at 1119.
We held that forcing an individual to drive sixty-five miles per day as a condition of marriage
was not a significant burden and applied rational basis to uphold the policy. Id. at 1121.

       I do not read Obergefell as overruling cases like Montgomery. Aside from passing
references to the Fourteenth Amendment, Obergefell did not spell out any new understandings of
the sources of marriage rights under our Constitution, or when and how to apply which mode of
analysis. Obergefell answered some questions, but it also left many unanswered.

       This is not mere pedantry. A restriction on marriage could be examined in different
ways, possibly with different results, depending on which analysis is used. For example, suppose
that instead of refusing to issue marriage licenses on the basis of moral misgivings about same-
sex marriage, the Rowan County clerk had gone on strike, and refused to issue marriage licenses
to any applicants until Rowan County gave her a pay raise. Very likely, were we to analyze such
a case under equal protection, we would not find a constitutional violation, because there would
simply not be disparate treatment of anyone. See Scarbrough v. Morgan Cty. Bd. of Educ.,
 Nos. 17-6119/6120/6233/6226            Ermold et al. v. Davis et al.                          Page 16


470 F.3d 250, 260 (6th Cir. 2006) (explaining that “[t]he threshold element of an equal
protection claim is disparate treatment”). On the other hand, if we were to analyze such a case as
a substantive due process violation, we might find a constitutional violation. Even if we agreed
that the refusal of one county—out of 120 in Kentucky—to issue marriage licenses was not a
significant interference with the right to marriage (and thus applied rational basis review), it is
hard to imagine that we would construe a county clerk’s desire for a pay raise as a legitimate
government interest to justify the non-issuance of marriage licenses.

        The present case, as the Majority points out, is relatively easy. Not because, as the
Majority holds, the case does not require us to discern and apply an appropriate level of scrutiny.
Instead, this case is straightforward because even if we give Davis the benefit of any doubt and
apply the lowest tier of scrutiny, rational basis review, the result is still the same. The next
marriage-regulation case that our court hears may not be amenable to this type of judicial
shortcut.

        Let’s assume arguendo—either because Davis’s actions were not a significant
interference with Plaintiffs’ right to marriage, or because her actions were not discriminatory
against a suspect or semi-suspect class—that rational basis is the appropriate level of scrutiny.
Under rational basis review, state activity is constitutional if it is rationally related to a legitimate
purpose. Liberty Coins, LLC v. Goodman, 748 F.3d 682, 694 (6th Cir. 2014). “There is a strong
presumption of constitutionality and the regulation will be upheld so long as its goal is
permissible and the means by which it is designed to achieve that goal are rational.” Id. To
conclude that the governmental action in question fails rational basis review, we must find that
“government action . . . ‘is so unrelated to the achievement of any combination of legitimate
purposes . . . that the government’s actions were irrational.’” Michael v. Ghee, 498 F.3d 372, 379
(6th Cir. 2007) (quoting Club Italia Soccer & Sports Org. v. Charter Twp. of Shelby, 470 F.3d
286, 298 (6th Cir. 2006)).

        Although rational basis is the lowest level of scrutiny, there are some instances in which
government action does not pass even that low bar. Under Romer v. Evans, government actions
based on moral disapproval of homosexuality fail rational basis review. See 517 U.S. at 632.
Similarly, in Lawrence v. Texas, the Supreme Court indicated that moral disapproval on the part
 Nos. 17-6119/6120/6233/6226                   Ermold et al. v. Davis et al.                          Page 17


of the state legislature was not a “legitimate state interest” justifying interference with
homosexual relationships. 539 U.S. 558, 578 (2003). Likewise, county clerks are not allowed
to act on this basis.          Cf. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978)
(“[L]ocal governments, like every other § 1983 ‘person,’ . . . may be sued for constitutional
deprivations . . . .”).

        Davis argues, however, that she was entitled to an accommodation under KRFRA, or at
least had a good-faith basis to argue for such an accommodation, that would entitle her to
qualified immunity, notwithstanding the federal constitutional mandates of Romer, Lawrence,
and Obergefell.         However, it is not settled whether KRFRA actually entitled Davis to an
accommodation.1 KRFRA provides, in relevant part:

        The right to act or refuse to act in a manner motivated by a sincerely held
        religious belief may not be substantially burdened unless the government proves
        by clear and convincing evidence that it has a compelling governmental interest in
        infringing the specific act or refusal to act and has used the least restrictive means
        to further that interest.

Ky. Rev. Stat. § 446.350. Based on this language, Davis not only argues that she was entitled to
an accommodation but also takes the argument even further: she claims she was entitled to self-
create an accommodation if none was forthcoming from the state government. The latter point,
it seems to me, goes too far.

        Even if we assume arguendo that KRFRA entitled her to an accommodation,2 it was not
permissible for Davis to take the law into her own hands. Her “accommodation”—refusing to
issue any marriage license to any applicant—denied Plaintiffs marriage licenses in Rowan
County to which they were entitled, given the existing state statutory framework and the holding
of Obergefell. Davis is correct that Obergefell neither spelled out the entire nature of marriage
rights under our Constitution nor spelled out a comprehensive analysis for constitutional review
of restrictions on marriage rights. She also correctly notes that the Obergefell majority and

        1I   note here that the constitutionality of KRFRA is not at issue in this case.
        2This   assumption is not necessarily true. My research could not find a Kentucky case interpreting KRFRA
to support the theory that a government employee may be relieved from the performance of ministerial duties under
the auspices of the statute. However, for the purposes of this concurrence, I assume without purporting to decide
that Davis’s theory of KRFRA is correct.
 Nos. 17-6119/6120/6233/6226          Ermold et al. v. Davis et al.                       Page 18


dissent agreed that the holding was not meant to denigrate religious faith or people who hold
moral viewpoints in opposition to same-sex marriage. See Obergefell, 135 S. Ct. at 2607; id. at
2625 (Roberts, C.J., dissenting). However, whatever unclarity, whatever unresolved tension,
whatever lingering questions remain in the wake of Obergefell, one thing is clear from that
decision: “Today . . . the Court takes the extraordinary step of ordering every State to license and
recognize same-sex marriage.” Id. at 2611 (Roberts, C.J., dissenting). Although I cannot agree
with the Majority’s statement that “Obergefell left no uncertainty,” Majority Op. at 9 (emphasis
added), I agree that Davis knew or ought to have known, to a legal certainty, that she could not
refuse to issue marriage licenses, as was her duty under state law, because of moral disapproval
of homosexuality. And if Davis truly believed that she had a right under KRFRA to not issue
marriage licenses, she should have sought and obtained judicial confirmation of her claim. That,
she did not do.

       I therefore agree with the Majority that Plaintiffs have pleaded a violation of their
constitutional right to marriage based on Davis’s refusal to issue marriage licenses and that the
district court correctly denied qualified immunity to Davis because she violated clearly
established rights.
