By ADAM BEAM
After a five-day stint in jail for refusing to issue marriage licenses to same-sex couples, Rowan County Clerk Kim Davis will return to work as soon as Friday to face another day of reckoning.
The apostolic Christian, now a symbol of strong religious conviction to thousands across the globe, would not say whether she would allow licenses to continue to be issued or try to block them once again, defying a federal court order that could send her back to jail.
Davis walked out of the Carter County Detention Center’s front door Tuesday, arm in arm with her lawyer and with Republican presidential candidate Mike Huckabee as thousands of supporters cheered and waved white crosses backed by a 150-voice church choir. Some in the crowd sang “Amazing Grace” and “God Bless America.”
Davis will take a couple of days off from work to spend with her family and will return to work Friday or Monday, according to an emailed statement from Charla Bansley, a spokeswoman for Liberty Counsel, the Christian law firm representing Davis. The statement did not say whether Davis would allow her office to grant licenses.
At 8 a.m. Wednesday, her office — at the Rowan County Courthouse in Morehead — opened as scheduled. Deputy clerk Brian Mason said the office would issue licenses to anyone seeking them. He added that if Davis returns to work and tells him to stop, he’ll tell her that he can’t obey and instead must follow a federal judge’s order to issue licenses.
In lifting the contempt order against Davis, U.S. District Judge David Bunning said he was satisfied that her deputies were fulfilling their obligation to grant licenses to same-sex couples in her absence. But Bunning’s order was clear: If Davis interferes with the issuance of marriage licenses to same-sex couples upon her return, she could go right back to jail.
“Kim cannot and will not violate her conscience,” said Mat Staver, founder of the Liberty Counsel, the Christian law firm representing Davis. As for whether she will issue licenses, Staver said only: “You’ll find out in the near future.”
Staver said the licenses issued to same-sex couples by Davis’ employees last week were not valid because they were not given under Davis’ authority. But the Kentucky attorney general’s office said it believes otherwise.
Attorney General Jack Conway also says that for now, he won’t appoint a special prosecutor to investigate the claim that Davis committed a crime when she refused to issue licenses. One couple who was rejected had asked the local prosecutor to look into whether Davis could be charged with official misconduct, a misdemeanor in Kentucky applicable to public officials who neglect their duties. Rowan County Attorney Cecil Watkins cited a conflict of interest and passed the complaint to Conway.
But in a one-sentence statement Wednesday, Conway noted that Davis’ actions are being monitored already: “Judge Bunning and the federal court have control of this matter, and therefore a special state prosecutor is not necessary at this time.”
At least one of the four couples that sued Davis have not yet received a marriage license. Five of Davis’ six deputy clerks — all except her son, Nathan — agreed to issue licenses to gay couples with Davis behind bars. In lifting the contempt order, Bunning asked for updates on the clerks’ compliance every two weeks.
On Wednesday, deputy clerk Mason said 10 marriage licenses had been issued since Friday, in Davis’ absence: eight Friday and two Tuesday — and seven of those went to same-sex couples.
Scott Bauries, a law professor at the University of Kentucky, said that if Davis returns to work and orders her deputies not to issue licenses, she would push them into a thorny legal conundrum of their own: They would have to choose whether to defy a federal judge or defy their boss. Bauries suspects that any deputy who chooses not to issue licenses could be held in contempt.
Davis, 49, has refused to resign her $80,000-a-year job. As an elected official, she can lose her post only if she is defeated for re-election or is impeached by the state General Assembly. Katherine Franke, a professor at Columbia Law School, said the state legislature should find the political will to boot Davis from office since she has ignored her oath of office in favor of her religious conviction.
“The claim she’s making is a clear loser. It’s a political claim, it’s not a legal claim,” Franke said. “That’s why she lost on the district level and the circuit level and she will continue to lose. She’s fighting for justice on the level of religious law. But we don’t live in a theocracy.”
It is unlikely the Kentucky state legislature would impeach Davis. The Republican president of the state Senate spoke at a rally at the state Capitol and filed an amicus brief asking Bunning not to hold Davis in contempt of court for defying his order. Several lawmakers have already filed legislation for the 2016 session that would exempt county clerks from having to issue marriage licenses.
Dan Canon, an attorney for the couples who sued, said they will ask the judge to again hold Davis in contempt if she returns to work and blocks her deputies from dispensing licenses.
“We are hoping she is going to comply with it. We’ll have to see,” Canon said. “But if experience is a teacher, Ms. Davis just doesn’t believe that court orders apply to her.”
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Associated Press writer Claire Galofaro in Louisville, Kentucky, contributed to this report.
