Rowan County Clerk Kim Davis is expected to return to work in the coming days following her dramatic release on Tuesday from a Kentucky detention center. She had spent five days behind bars for refusing to comply with a federal order that she issue marriage licenses in line with the recent Supreme Court decision legalizing same-sex nuptials. But it remains unclear whether Davis will continue her defiant stand once she heads back to the office.
Since U.S. District Judge David Bunning, a President George W. Bush appointee, remanded Davis into the custody of federal marshals last week, her deputies have been issuing marriage licenses to all eligible applicants – gay and straight. One of those deputies, Brian Mason, told NBC News’ Gabe Gutierrez that as of Wednesday morning, the Rowan County Clerk’s office had issued seven marriage licenses to same-sex couples – six on Friday, and one on Tuesday.
Couples celebrated with marriage equality advocates as they emerged from the clerk’s office with their newly-issued licenses. But serious questions hang over their unions – and those to come.
For starters, it’s not yet clear whether marriage licenses issued by Davis’ deputies are even valid. Kentucky law requires marriage licenses be issued by the clerk for the county, unless there is a vacancy in the clerk’s office or the clerk is absent. Because Davis did not authorize the issuance of marriage licenses, her deputies decided to remove her name from the document. So instead of saying, “Issued … in the office of [Rowan County Clerk Kim Davis,]” the marriage licenses issued since last Friday read: “Issued … in the office of Rowan County.”
Bunning himself acknowledged the uncertainty over whether marriage licenses issued without the county clerk’s authorization could be considered valid under Kentucky law. But he decided in court last week to leave the matter for another day. His main goal was getting immediate compliance with his August order to issue marriage licenses.
Both the county attorney, and Democratic Gov. Steve Beshear have said that marriage licenses issued by Davis’ deputies are valid. But Davis’ legal team disagrees. “They are not worth the paper they’re written on,” said Mat Staver, one of Davis’ attorneys, outside the Carter County Detention Center last week.
Another major question is whether Davis will block her deputies from issuing marriage licenses once she returns to work. Doing so could mean more jail time or stiff fines. But Staver kept repeating that Davis would “not violate her conscience” when asked what she planned to do after her release on Tuesday.
For his part, Deputy Clerk Brian Mason told Gutierrez he would continue to issue marriage licenses even if his boss tells him to stop. Mason was one of five deputies who told Bunning last week he would comply with his order, but he was the only one who said he had wanted to issue marriage licenses since June, when the Supreme Court made marriage equality the law of the land.
Many might be wondering: Why is Davis allowed to keep her job if she’s refusing to perform all of her duties, which include issuing marriage licenses? Turns out, removing her is easier said than done. As an elected official, Davis could lose her job if the Kentucky Legislature moves to impeach her. But with each party in control of one chamber, that outcome seems unlikely. Additionally, the legislature is not scheduled to convene until next year, and could only be brought back earlier if Gov. Beshear called for a special session – something Davis’ attorneys have asked for him to do in order for lawmakers to consider changing the statute that requires county clerks to issue marriage licenses. Beshear has so far refused to call a special session, saying that it would cost “hundreds of thousands of dollars of taxpayers’ money.”
Another option would be to charge Davis with official misconduct, a misdemeanor that could result in a court order removing her. The office of the state’s Democratic Attorney General Jack Conway, however, said in a brief statement Wednesday that he would not appoint a special prosecutor to pursue a criminal case of official misconduct against Davis, despite a request to do so from the Rowan County attorney. “Judge Bunning and the federal court have control of this matter, and therefore a special state prosecutor is not necessary at this time,” said Conway’s spokeswoman Allison Gardner Martin.
For now, these questions will have to go unanswered. According to Liberty Council, which is representing Davis, the 49-year-old will take a “couple of days” to rest and spend time with her family. Davis plans to return to work on Friday or Monday, a spokesman for Liberty Council said, though the exact date is not firm. Neither is what happens next.