Update: The Kentucky county clerk who was jailed for refusing to issue marriage licenses to same-sex couples returned to work Monday and said she would not stop her deputies from issuing them.
But the clerk, Kim Davis, said the licenses would be invalid until the governor, the courts or the legislature steps in. The county attorney and the governor’s office have previously said the licenses would be valid.
MOREHEAD, Kentucky — When the Rowan County clerk’s office opens at 8 a.m. ET Monday, Kim Davis will have a decision to make.
In her absence, her subordinates have been issuing marriage licenses to same-sex couples. Does she stop them? If so, how? Call a staff meeting? Fire them?
Or stay silent?
“We hope Kim Davis will follow the law and obey court orders,” said Amber Duke, a spokeswoman for the American Civil Liberties Union of Kentucky. “If she doesn’t, our attorneys will meet and decide our next action.”
Even Davis’ lawyers at Liberty Counsel, the Florida-based group that has been representing her, haven’t offered specifics on what she plans to do.
“Kim Davis is the only person that can decide what Kim Davis will do,” said one of her attorneys, Harry Mihet. “She has told the court and everyone else that she will not — under any circumstances — violate her conscience and the core of who she is.”
The ongoing saga has captivated the country — and personified the battle between same-sex marriage and religious freedom.
As the Rowan County clerk, Davis refused to issue marriage licenses to anyone after the U.S. Supreme Court legalized same-sex marriage in June. The ACLU sued on behalf of several couples who were denied licenses, and earlier this month a federal judge sent Davis to jail for refusing to comply with federal law.
She was released last week after spending five nights in jail because most of her deputy clerks started issuing the licenses. Hundreds of her supporters cheered as she walked out of the Carter County Detention Center, flanked by her husband, her lawyer and Republican presidential candidate Mike Huckabee. Speakers blared the rock anthem “Eye of the Tiger.”
“I just want to give God the glory,” she said onstage. “His people have rallied, and you are a strong people!”
As an elected official, Davis can’t be fired. Impeachment is unlikely, as she has many supporters within Kentucky and the Legislature doesn’t even meet until January.
Gov. Steve Beshear has said a special session before then is off the table.
She could resign, but she would have to give up her roughly $80,000-a-year salary. Also, she and her attorneys have repeatedly reassured her supporters that she would not resign because she’s done her job well. It would be up to the voters to boot her out of office — and her term isn’t up until 2018.
When Judge David Bunning ordered Davis’ release last week, he specifically wrote that she couldn’t “interfere” with her office’s issuing the marriage licenses. It’s not clear what he would do if she does. She could face even more jail time — or maybe stiff fines, although during the previous hearing, Bunning said he didn’t think a financial penalty was sufficient, partly because many of Davis’ supporters had offered to help pay it.
If Davis were to violate Bunning’s order again, he could order federal marshals to take her into custody — at work — but that would cause quite a spectacle, because a throng of cameras has hovering around the clerk’s office. What could be more likely, some legal experts say, is that he would order yet another hearing for her to explain why she continued to violate his orders.
And then there’s the possibility that the U.S. attorney’s office could get involved and prosecute Davis for criminal contempt of court.
“I doubt very much that Judge Bunning will go down that road,” said Scott Bauries, an associate professor of law at the University of Kentucky. “His goal appears to be compliance with the Constitution, not punishment.”
Liberty Counsel founder Mat Staver, one of Davis’ lawyers, said last week that the case was “back at square one.” He has been calling on either the governor (through an executive order) or lawmakers (through legislation) to change the law and take the responsibility of issuing marriage licenses away from county clerks and give it to state government.
In a motion filed Friday in a federal appeals court, Davis’ attorneys asked that she be allowed to stop her office from issuing any more marriage licenses until the case is resolved and all possible appeals are exhausted.
Davis’ lawyers argue that Bunning’s original order had applied only to couples who were suing her — and that her right to due process has been violated because the order was expanded to include any couple legally eligible to marry.
But while there are several pending legal and legislative hurdles, settling them likely won’t happen before 8 a.m. Monday — when Kim Davis will be faced with a decision. Both her supporters — and her opponents — will be watching.
This story originally appeared on NBCNews.com