Can marriage licenses without the certification of the Rowan County clerk be considered valid in Kentucky? Kim Davis says, “I myself have grave doubts” about that very question, but until the state legislature amends the law on marriage licenses to deal with the post-Obergefell legal environment, it’ll have to do. As she returned to work this morning, Davis announced the plan to satisfy the courts while refusing to have her name associated with same-sex marriage in Rowan County:
Kentucky clerk Kim Davis indicated Monday she would not interfere with her deputies issuing marriage licenses to same-sex couples, but that she did not want her name on them.
“If any of them feels that they must issue an unauthorized license to avoid being thrown in jail, I understand their tough choice and I will take no action against them,” Davis said in a statement read outside the courthouse.
“However, any unauthorized license that they issue will not have my name, my title or my authority on it,” Davis added. “Instead, the license will state that they are issued pursuant to a federal court order.”
Reuters notes that the court order forbids Davis from interfering with the issuance of marriage licenses. Will this cut it? And will this undermine her appeal to the Sixth Circuit?
U.S. District Judge David Bunning ordered Davis jailed for contempt on Sept. 3 for refusing to comply with his order to issue licenses in line with the Supreme Court ruling. He ordered her released five days later when the licenses were being issued by deputy clerks.
In his release order, Bunning warned Davis there would be consequences if she interfered with the issuance of marriage licenses, directly or indirectly, when she returned to work. …
On Friday, Davis asked the Sixth Circuit U.S. Court of Appeals to allow her to continue banning marriage licenses for her entire office until a lawsuit against her is decided. Her attorneys argued that Bunning’s initial order had only covered couples who were suing her.
If the state of Kentucky recognizes these licenses as valid, then it should not cause Davis any more legal troubles. On the other hand, that would almost certainly moot the appeal, since the accommodation would allow Davis to act on her own conscience and still allow Rowan County residents to access the licenses. The state legislature will need to act to adapt licensing laws, perhaps more to ensure that county clerks cannot hijack the process in the future regardless of what the issue is, but they can also amend the statute to recognize the licenses that Davis’ office will now issue, with or without her signature and name on them.
If not, get ready for round 2. I’d guess, though, that everyone involved would like to see attention shift away from Rowan County and this fight, which gives an extra incentive to accept the validity of these certificates. Rowan County voters can decide in their next county clerk election whether they want to continue that policy.