FRANKFORT, Ky. – As a candidate for governor in 2015, Matt Bevin said he "absolutely supported" a Kentucky county clerk who stopped issuing marriage licenses because of her opposition to gay marriage.
But four years later, after a court ordered Kentucky taxpayers to pay more than $222,000 in legal fees for the gay and straight couples who sued, outside lawyers for now Gov. Bevin say former Rowan County clerk Kim Davis broke the law and taxpayers "should not have to collectively bear the financial responsibility for Davis' intransigence."
"Only Davis refused to comply with the law as was her obligation and as required by the oath of office she took," Bevin attorney Palmer G. Vance II wrote in a brief filed with the court.
Bevin has been a staunch supporter of Davis, who spent five days in jail for refusing a court order to issue marriage licenses following the historic U.S. Supreme Court ruling that effectively legalized gay marriage. Davis even switched parties, registering as a Republican because she said the Democratic Party abandoned her. But now, Davis and Bevin will oppose each other in federal court on Thursday as lawyers argue who should have to pay for the lawsuit that stemmed from Davis' actions.
Bevin and Davis, who lost her re-election bid in November, have asked the court not to award legal fees. But if they do, they disagree on who should pay. Davis' attorneys argue she acted on behalf of the state.
But in an interview with The Associated Press, Davis' attorney Mat Staver said he does not attribute those arguments to Bevin, but to the attorneys who represent him. Those attorneys, Palmer G. Vance II and William M. Lear Jr., are the same ones who represented former Democratic Gov. Steve Beshear on the case before Bevin took office.
"(Bevin) led the charge on that religious liberty accommodation, which is what we asked for from the very beginning," Staver said.
Bevin's in-house attorney, Steve Pitt, also noted the lawyers were hired by Beshear and said they "have taken no position as to whether Ms. Davis acted unconstitutionally."
"Governor Bevin does not believe that she has done so and continues to support Ms. Davis's actions," Pitt said. "Our outside counsel have only argued, given the court's ruling, that if constitutional rights were violated, the taxpayers of Kentucky are not responsible to pay the ACLU's attorney fees."
Vance and Lear did not return a phone call seeking comment.
The case dates to the summer of 2015 when same-sex marriage became legal nationwide. At the time, the county clerk's name appeared on all marriage licenses in Kentucky. Davis, a devout Apostolic Christian who says gay marriage is contrary to her religious beliefs, viewed this as her endorsement of same-sex marriage. She stopped issuing all marriage licenses.
Several gay and straight couples sued her with the help of the American Civil Liberties Union. A federal judge ordered her to issue the licenses, but Davis refused. The judge then found her in contempt of court and jailed her for five days. The case was resolved when the state legislature passed a law removing the names of county clerks from Kentucky marriage licenses.
In 2017, a federal judge ruled that Davis was acting as an agent for the state, making Kentucky taxpayers responsible for paying the legal fees of the gay and straight couples who filed suit. Bevin objected. His lawyers argue no one should have to pay the legal fees, because the gay and straight couples did not technically win the lawsuit since it was dismissed.
However, Bevin's lawyers also argued if legal fees are awarded, either Rowan County or Davis herself should be responsible to pay them. Bevin's lawyer Palmer Vance II, noted the purpose of requiring losers to pay for attorneys' fees is to deter "conduct that violates civil rights."
"That purpose is not vindicated if the offending office (the Rowan County Clerk's Office) suffers no liability," Vance wrote. "Indeed, there is little to deter the Rowan County Clerk's Office from developing policies that violate the Kentucky or United States Constitutions."
Jeffrey C. Mando, an attorney for Rowan County, dismissed that argument. He said clerks are elected officials and not county employees. He also added that "all procedures relating to marriage licenses are governed solely by the state." He said that's why former Democratic Gov. Steve Beshear ordered county clerks to issue marriage licenses to same-sex couples and it's why Bevin issued later issued an executive order removing clerks' names from the licenses.
"The Commonwealth exercised a great deal of control over Davis, while the County enjoyed none," Mando wrote.