The 3-judge panel split 2-1 in their analysis of why Davis was not entitled to qualified immunity. Judge Griffin, joined by Judge White, held that Obergefell clearly established a right for same-sex marriage and eliminated the need to use a tiers-of-scrutiny analysis in cases such as this. Judge Bush held that a tiers-of-scrutiny analysis should be used, but that Davis' conduct does not survive even rational basis review.
In a related case, Miller v. Caudill, (6th Cir., Aug. 23, 2019), the U.S. 6th Circuit Court of Appeals affirmed the award of $222,695 in attorneys' fees to several same-sex couples who had obtained a preliminary injunction against Davis' policy, but litigated no further after Davis' deputy clerks agreed to issue the licenses. The 6th Circuit concluded that plaintiffs qualified as a "prevailing party" entitled to attorneys' fees under 42 USC §1988, and that these fees should be paid by the state of Kentucky rather than Rowan County. The Court said in part:
A win is a win—regardless of whether the winner runs up the score. To prevail, then, plaintiffs didn’t need to obtain duplicative relief in every form that they originally sought it. They wanted the opportunity to obtain marriage licenses in Rowan County, and the preliminary injunction gave them exactly that.Louisville Courier Journal reports on this decision. [Thanks to Tom Rutledge for the lead.]