Applying for a marriage license after 17 years together should have been a joyous experience. But David Moore and David Ermold say their quest to become husbands in 2015 will forever be tainted. It took them four visits to a Kentucky courthouse, a discrimination lawsuit, and ultimately someone being thrown in jail for contempt before they were allowed to get married—despite the fact that same-sex marriage was already the law of the land.
Earlier this month, the 6th Circuit Court of Appeals revived Moore and Ermold’s lawsuit against Rowan County clerk Kim Davis, who denied their license applications because of her religious beliefs. They seek damages for “the particularized harm” they suffered at the hands of Davis’s refusal to issue them a license.
While Davis might have garnered national attention for refusing to issue marriage licenses to same-sex couples, she’s not the only one. In March, a Wyoming judge was publicly censured for refusing to preside over same-sex marriages. Moreover, in North Carolina, there’s actually a statute on the books that permits magistrates to walk off the job if they don’t want to marry same-sex couples because of their religious beliefs. And Texas legislators introduced a similar bill earlier this year.
So, it’s not unthinkable that a same-sex couple might experience discrimination when trying to apply for a marriage license. And most people inherently know when they’ve been wronged. But from a legal perspective, there are a couple of important points couples should consider before trying to file a lawsuit.
“The key thing,” says Chris Brook, legal director at the ACLU of North Carolina, “is if somebody is denied the right to marry.” But documentation is helpful. When Moore and Ermold applied for their licenses, their encounters with Davis were filmed.
“We usually interview folks and want to understand exactly what the circumstances are,” explains Brook. “We try to understand the entire narrative of what transpired. We’d want to talk to the couple, we’d want to talk to anyone who’d witnessed the circumstance, and if possible we might want to try to get the perspective of the courts in regards to what happened.”
From there, Brook says, if litigation turns out to be a viable option, they’d begin to draft “a complaint that chronicles what happened in this circumstance and lays out why that is impermissible pursuant to the federal Constitution and its guarantee of equal protection under the law.”
The end goal, he says, would be “to ensure that quasi-judicial government officials fulfill their oath to uphold the Constitution.” They’d also want to make sure plaintiffs are “compensated for any damages caused by the denial of constitutional rights.”
But, as we all know, these kinds of cases take a lot of time and money. Despite how daunting and arduous the process can appear, Brook has this message for couples who may find themselves in a similar situation as Moore and Ermold's: “They don’t have to accept that sort of second-class treatment. The Constitution makes plain that they should be treated equally with other citizens who are straight.”
“If you think you’re being treated unfairly,” he continues, “or if you think you’re being discriminated against based on your sexual orientation…that’s not something you should have to tolerate in 2017.”