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Kentucky Clerk Kim Davis Released From Jail, But She May Not Be Free For Long

Kimberly Davis

Kim Davis, the Rowan County, Kentucky Clerk who was jailed last week for her refusal to comply with a Federal Judge’s Order that she issue marriage licenses to same-sex couples, has been released, but it’s unclear if she will be able to avoid being held in contempt all over again:

Kim Davis, the Kentucky county clerk who was jailed last week after she defied a court’s order that she issue marriage licenses to same-sex couples, was ordered released on Tuesday.

In a two-page order issued Tuesday, the judge who sent her to jail, David L. Bunning of the Federal District Court, said he would release Ms. Davis because he was satisfied that her office was “fulfilling its obligation to issue marriage licenses to all legally eligible couples.”

Judge Bunning ordered that Ms. Davis “shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.” He he said that any such action would be regarded as “a violation” of his released order.

Although a Supreme Court decision in June legalized same-sex marriage throughout the United States, Ms. Davis, the Rowan County clerk, said her beliefs as an Apostolic Christian kept her from sanctioning any such nuptials. Judge Bunning last month said she was required by law to issue the licenses, but she maintained her resistance and was sent to jail.

Ms. Davis’s argument and incarceration have resonated deeply among Christian conservatives, many of whom fear an erosion of religious liberty, and transformed the clerk of a rural Kentucky county into an unyielding symbol of opposition to same-sex marriage.

Ms. Davis’s deputies began processing licenses after she was jailed. In a signal of the possible courtroom battles to come, Ms. Davis’s lawyers have questioned whether those licenses are valid, but Rowan County officials have insisted they will be recognized.

Reports of Ms. Davis’s release came shortly ahead of visits planned by two Republican presidential candidates, Senator Ted Cruz of Texas and Mike Huckabee, the former governor of Arkansas, and a rally in support of Ms. Davis. A handful of local schools were closed Tuesday as the streets of this small town, population 4,200, near the border with West Virginia, swelled with traffic.

(…)

Last month, Judge Bunning ruled against Ms. Davis’ claim that giving licenses to same-sex couples would infringe on her freedom of religion, and ordered her to resume issuing the licenses. She appealed. A federal appeals court turned down her request to stay Judge Bunning’s order, pending the outcome of her appeal, and on Aug. 31, the Supreme Court did the same.

But in a court hearing last Thursday, she held to her refusal to issue any licenses. Five of her six deputies told Judge Bunning that they would be willing to issue and sign the licenses without her approval, but Ms. Davis’ lawyer said she would not allow that.

The judge held Ms. Davis in contempt and ordered her to jail, and told her deputies to begin issuing marriage licenses.

On Friday, amid loud protests on both sides, and a throng of journalists, the Rowan County clerk’s office gave marriage licenses to six same-sex and two opposite-sex couples.

Davis should be out of detention in a few short hours at the latest, and at that point the ball will be in her court. As Judge Bunning says in his order, the fact that the Plaintiffs in the original case were able to obtain their marriage licenses and that Davis’s deputies are willing to continue issuing those licenses essentially means that the original reason for her being held in contempt no longer exist. Given that, continuing to hold her in custody could have potentially been seen by the Court of Appeals, to whom Davis had appealed Bunning’s contempt finding, as an abuse of discretion. The purpose of the contempt ruling was to get her to comply with the original order that Davis issue licenses to the Plaintiff’s. Since that has essentially happened, although not because of her cooperation, the Court’s order has been satisfied for now. If problems occur in the future with Davis’s compliance with the August 12th ruling, then that will have to be the subject of future proceedings.

Judge Bunning’s new order does not require Davis herself to issue marriage licenses to anyone, but it does forbid her from interfering with her deputies in the issuance of licenses to anyone, including same-sex couples. Since the deputies themselves are now represented by counsel independent from those representing Davis, it’s possible that whatever pressure Davis might have been putting on them to follow her in her crusade to violate the law and the duly issued orders of a Federal Court will be lessened. If she does interfere, though, then it is likely that she will be back before Judge Bunning, and it’s unlikely that he will be as charitable to her as he was today. So Kim Davis’s future fate is entirely in her hands.

At least according to initial reports, that future may involve her heading back to jail very soon:

Just minutes after a judge ordered Kim Davis released from jail on Tuesday, her lawyers told CNN that she would violate a court order by forcing her clerks to stop issuing marriage licenses to same-sex couples.

An order from U.S. District Court Judge David Bunning said on Tuesday that Davis would be released after serving six days in jail on the condition that she “shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.”

CNN correspondent Martin Savidge, who was at the jail, explained following the order that her attorney, Harry Mihet, said that the judge had ordered the release because her office had satisfied the court by issuing marriage licenses to same-sex couples while she was behind bars.

“The problem here is that the attorney says she has not changed her mind, that Kim Davis is adamant that as long as her name appears on those marriage licenses, she objects and she will attempt to stop those licenses from being distributed,” Savidge reported. “Which means if she goes back on the job as is expected, she will bring the process to a halt. That’s what her attorneys believe.”

“They have said they expect her to go by her conscience which means we may go through this all again,” the CNN correspondent noted.

Savidge said that Davis’ legal team told him that they did not feel that they had won a victory because the judge had not accommodated her demands to have her signature removed from marriage licenses.

If this report is accurate, and Davis continues to defy the Court’s order by blocking her deputies from issuing licenses, then this will be a very short reprieve indeed and Davis may well end up back in jail before the end of this week.

Here is Judge Bunning’s Order:

Miller v Davis Order by Doug Mataconis

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Mu says:

    So, what happens if you really piss off a judge, contempt transfer to ADX Florence?

    Like or Dislike: Thumb up 7 Thumb down 1

  2. NW-Steve says:

    It is very difficult to avoid the conclusion that her true purpose is not to avoid actions that are in conflict with her religious convictions.

    Rather, every action she takes, or threatens, says that she is trying to stop THOSE PEOPLE from doing THAT THING.

    And that cannot be allowed to stand in a civil society.

    Highly-rated. Helpful or Unhelpful: Thumb up 40 Thumb down 2

  3. David in KC says:

    Since the accommodation that she wants can only be enacted by the legislature, she could just take an unpaid leave until such time as the legislature changes the law, or she could just do her damn job.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 1

  4. sam says:

    @David in KC:

    “Since the accommodation that she wants can only be enacted by the legislature”

    Maybe not.

    See, Marty Lederman: Does anyone have any idea what’s happening with marriages in Rowan County, Kentucky?

    According to Mr. Lederman , Kentucky state law does not require the county clerk’s signature on the license, a deputy county clerk’s signature will do:

    Davis’s entire case for resisting the law is premised on her assumption that if the licenses include her name—which she thinks, perhaps mistakenly, Kentucky law requires—those licenses would thereby constitute her authorization or approval of same-sex marriages. She’s wrong about that, however.

    It is true that a Kentucky marriage license is, as the official form for a Kentucky marriage license indicates, an authorization to the officiant “to join together” two named individuals “in the state of matrimony, according to the laws of the Commonwealth of Kentucky.” And it is also the case that one provision of Kentucky law (KRS § 402.080) states that a license “may be issued by any county clerk,” and that another provision (KRS § 402.100) provides that “[e]ach county clerk shall use the form prescribed by the Department for Libraries and Archives when issuing a marriage license.” That same latter provision, however, also indicates that the license may, alternatively, be issued by a deputy clerk: It specifically states that the license must contain “[t]he date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license.” Moreover, KRS § 61.035 states that “[a]ny duty enjoined by law . . . upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.”

    Accordingly, it appears that Kentucky law allows Deputy Clerk Mason, rather than Clerk Davis, to sign and issue the license. And, as Judge Bunning noted, even before he held Kim Davis in contempt, Mason (or another Deputy Clerk in Rowan County) was willing to sign and issue such licenses. The important point is this: Kim Davis does not have to sign or issue any marriage licenses as long as one of her Deputy Clerks will do so.

    Highly-rated. Helpful or Unhelpful: Thumb up 23 Thumb down 0

  5. Scott says:

    And what if one of the deputy clerks issue license in defiance of her interference but in conformance to the court order? What is the procedure then? What if one of the deputy clerks gets fired and claims violation of his/her “religious liberty”. The permutations just highlights the absurdity of the problem.

    Highly-rated. Helpful or Unhelpful: Thumb up 23 Thumb down 1

  6. Jc says:

    I think she violated these two below.

    Apostolic Christian

    17. Governmental authority is respected and obeyed. Members serve in a non-combatant status in the military. Oaths are not taken, but truth is affirmed.

    18. Marriage is a lifelong union ordained of God in which a man and a woman of like mind, faith, and fellowship are united in the Lord in Holy Matrimony.

    http://www.apostolicchristian.org/

    Like or Dislike: Thumb up 5 Thumb down 0

  7. NBH says:

    So is this a case of giving someone enough rope to hang herself with? If she’s stupid and tries to stop the other clerks after things have been running without issue, she demonstrates quite nicely that the current theocrat code-phrase “religious liberty” is all about “privilege for me, screw everyone else.” It would show how she’s not only worthy of contempt for failing to do her job but also for forcing her religion on the deputy clerks.

    The chutzpah of these people to try and wrap themselves in “liberty” while stomping all over the rights and religious freedom of others is absurd.

    Highly-rated. Helpful or Unhelpful: Thumb up 24 Thumb down 1

  8. Mu says:

    @Jc: Don’t forget, it only counts for marriage of like faith. Previous attempts don’t count (the Catholics have a similarly odd interpretation).

    Like or Dislike: Thumb up 1 Thumb down 1

  9. Franklin says:

    Mike Huckabee has just said he is willing to go to jail in place of Ms. (quadruple-divorced) Davis. An empty promise, as far as I can tell. But I don’t mind him joining her if he wants.

    Like or Dislike: Thumb up 13 Thumb down 0

  10. C. Clavin says:

    I’m still waiting for proof of “God’s Authority” on this.
    Davis and Huckabee seem to think God hates da gayz…but are unable to prove it.

    Like or Dislike: Thumb up 6 Thumb down 0

  11. gVOR08 says:

    @Mu: To be fair to her I should note that I read over the weekend that the earlier marriages shouldn’t count as she converted to Apostolic recently. On the other hand, I’m way too tired of these aggressively self righteous holy rollers to have any desire to be fair to her.

    Like or Dislike: Thumb up 8 Thumb down 0

  12. David in KC says:

    @sam: Thanks for pulling that up. Since her name doesn’t need to be on there, I don’t see an issue for her. You would think her attorneys would have mentioned that to her if they, in fact, we’re trying to provide her with good legal advice instead of, I don’t know, have a platform to raise money.

    Like or Dislike: Thumb up 8 Thumb down 0

  13. Joe says:

    @sam: Even if the deputy cannot issue the licenses, I understand a Kentucky State court judge could potentially “order” the Commonwealth under state law to allow the issuance without the Clerk’s name as a “reasonable accommodation.” A federal judge normally will not invoke state law against state officers. She would have to go to state court rather than federal court to accomplish this.

    I have seen it reported that Davis insists that her title not be on the license either. This statement, if true, and her attorneys’ refusal to pursue a more low profile but potentially effective remedy, and perhaps her active interference with her deputies all just underscore that she does not want an accommodation – she wants a fight.

    Like or Dislike: Thumb up 12 Thumb down 0

  14. Scott F. says:

    Ms. Davis’s argument and incarceration have resonated deeply among Christian conservatives, many of whom fear an erosion of religious liberty, and transformed the clerk of a rural Kentucky county into an unyielding symbol of opposition to same-sex marriage.

    The arguments against Mrs. Davis’s position are evident, yet the supposedly liberal NYT can print the above without clarifying that:

    1. Christian conservatives have so far failed to articulate how Mrs. Davis is any less free to worship as she pleases, pray as she pleases, believe in whatever narrow view of God she pleases or even to publicly renounce same-sex marriage as loudly and as often as she pleases. She’s only being told that as an agent of the state she can’t impose her religion on others.

    2. Mrs. Davis is a terrible symbol for opposition to same-sex marriage, because (see #1).

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  15. Ron Beasley says:

    She we has said she will insist that her deputies again start refusing LGBT wedding licensees so her freedom will be short lived. Let her fat ass rot in prison.

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 1

  16. C. Clavin says:

    @gVOR08:
    OK…so her message is that it took her 50 some odd years to see the light…and now, dammit, she’s going to show the rest of us how to live?
    That’s just total BS.
    You don’t get a mulligan on 3 marriages that end in divorce and a couple kids out of wedlock. Actions speak louder than words and her actions should specifically prevent her from proselytizing.
    Let he who is without sin cast the first stone. The rest of you should just STFU.

    Like or Dislike: Thumb up 7 Thumb down 0

  17. bill says:

    someone brought up how “sanctuary cities” get away with disregard to federal immigration laws, yet this chck gets thrown in jail for refusing to enforce a federal law.

    Poorly-rated. Helpful or Unhelpful: Thumb up 1 Thumb down 28

  18. legion says:

    @bill: Show me where a judge has ordered a sanctuary city to stop doing that, and you’ll have some sort of equivalence. But if you’ll read literally _anything_ about this case, you’ll notice that Davis was jailed for contempt for refusing to follow a court order. Apples and oranges.

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 0

  19. Scott says:

    @bill: Kim Davis is not enforcing a law; she is complying with the law. BTW, there are many laws that are not enforced 100% of the time. There is always discretion involved.

    Not all cars over the speed limit are stopped and ticketed

    EPA does not take all violators to court

    Workplaces and their owners are not all raided for hiring illegal aliens

    etc, etc.

    Like or Dislike: Thumb up 6 Thumb down 0

  20. Mu says:

    Been exhaustively discussed, states and cities cannot be forced to ENFORCE federal law, this is why the feds have the marshal service etc.. Sanctuary cities do not assist in federal operations, but they do not prevent them either as they nevertheless have to OBEY federal law.

    Like or Dislike: Thumb up 5 Thumb down 0

  21. Davebo says:

    @gVOR08:

    Husband #4 is also Husband #2. So previous marriages or at least one is now current marriage.

    Like or Dislike: Thumb up 0 Thumb down 0

  22. James Pearce says:

    @bill:

    “someone brought up how “sanctuary cities” get away with disregard to federal immigration laws”

    Yeah, those people are dumb.

    Do you feel the same about sanctuary cities as you do about Kim Davis? You don’t? Well, no one else does either……

    @Franklin:

    Mike Huckabee has just said he is willing to go to jail in place of Ms. (quadruple-divorced) Davis

    Yes, it was rather disgusting to watch Davis reach for heaven with Mike Huckabee standing next to her holding a white cross. It was so disgusting I think Jesus puked.

    Like or Dislike: Thumb up 5 Thumb down 0

  23. Just 'nutha ig'rant cracker says:

    @Joe: I would go with that theory considering that her husband said something to the effect that her point was that the judge can’t tell her what to do.

    Like or Dislike: Thumb up 0 Thumb down 0

  24. Lit3Bolt says:

    Some ignorant asshattery here, a little playing a martyr there, and pretty soon you’re making real money.

    Like or Dislike: Thumb up 7 Thumb down 0

  25. Xenos says:

    @bill: Cities do not enforce immigration law – only the federal government does that.

    And even the federal government has a lot of discretion in how to do that (see, eg., all the regs and executive orders enacted since 1986).

    A clerk does not have discretion. If someone is legally entitled to a license, the have to issue it.

    Just imagine the opportunities for shakedowns if this was not the case.

    Like or Dislike: Thumb up 4 Thumb down 0

  26. abdul says:

    Ok correct me if I am wrong. The Bible says to obey they law of the land. The reason is because God places the leaders of the land including every liberal ever. Same chapter.

    There is some fuzzyness when we weigh first amendment and the law that says gay marriage is legal, but I don’t think there is fuzziness when those two concepts stand up to the Bible in her case because it is the footing of the whole argument.

    If you are acting according to the Bible then you will issue marriage licenses as that is the law of the land. But if you refuse to issue licenses then you are disobeying God. Is my logic close here?

    Like or Dislike: Thumb up 2 Thumb down 0

  27. abdul says:

    Further, if she stands on her first amendment rights, does it not go to show that she is “establishing a religion?” as she is an elected official? I’m gonna read the case.
    Dang it!

    Like or Dislike: Thumb up 0 Thumb down 0

  28. abdul says:

    Oh, that was simple. I thought it would be worse. Sorry PWI Posting while intoxicated. All she has to do is not say Kim Davis IS the county. If the county can issue in her stead she can just have deputies do it and she doesn’t suffer for what she believes in. I’m guessing she don’t go that way. And I’m glad. We need folks like her. After all how much entertainment would black civil rights classes be without Bull Conner. Davis will be that to gay rights. 2015 is the year of the gay, imho.

    Like or Dislike: Thumb up 1 Thumb down 0

  29. Barry says:

    @Scott: “What if one of the deputy clerks gets fired and claims violation of his/her “religious liberty”.”

    He gets prison for a filing a false claim, because ‘religious liberty’ only applies to right-wingers.

    Like or Dislike: Thumb up 2 Thumb down 0

  30. Barry says:

    @bill: “… yet this chck gets thrown in jail for refusing to enforce a federal law.”

    She has not been jailed for refusing to enforce a federal law.

    Like or Dislike: Thumb up 5 Thumb down 0

  31. Barry says:

    @Scott: “Kim Davis is not enforcing a law; she is complying with the law. BTW, there are many laws that are not enforced 100% of the time. There is always discretion involved.”

    What are you trying to say?

    Like or Dislike: Thumb up 1 Thumb down 0

  32. Barry says:

    @abdul: “There is some fuzzyness when we weigh first amendment and the law that says gay marriage is legal, …”

    No, there’s no fuzzyness whatsoever.

    Like or Dislike: Thumb up 2 Thumb down 0