MOREHEAD — Kim Davis’s deputy clerks have been busy since their boss was hauled to jail, issuing 10 marriage licenses, including seven to same-sex couples, her employee Brian Mason said Wednesday.
And if Davis tells him to stop after she returns to work, Mason said, he’ll tell her he can’t obey her, and instead must follow a federal judge’s order to continue issuing licenses to anyone who is legally eligible to receive them.
Some came from far away to get married in Rowan County. Mark Shrayber and Allen Corona flew in from San Francisco, saying Wednesday that they wanted to show their support for other gay couples after the judge forced an end to Davis’ marriage boycott, which she launched in response to Supreme Court’s legalization of same-sex marriage nationwide.
“We are in 2015. We are not burning witches anymore,” said Shrayber, adding that he’s disgusted to see Davis becoming “a martyr.”
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Shrayber and Corona picked up their license at the office on Tuesday, got married at Morehead State University, and then returned Wednesday to file the paperwork. Some local residents ran up to hug them, they said.
Davis, meanwhile, will return to work either Friday or Monday to face another day of reckoning after taking several days off to spend with her family, according to Charla Bansley, a spokeswoman for Liberty Counsel, the Christian law firm representing Davis.
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, to a podium backed by a 150-voice church choir. Thousands of supporters waved white crosses and sang Amazing Grace and God Bless America.
In lifting his contempt order against Davis, Bunning said he was satisfied that her deputies were fulfilling their obligation to grant licenses to same-sex couples in her absence. But Bunning warned that she could go right back to jail if she interferes with the issuance of marriage licenses to same-sex couples upon her return.
“Kim cannot and will not violate her conscience,” said Mat Staver, founder of the Liberty Counsel, the Christian law firm representing Davis. As for what might happen next, he said “You’ll find out in the near future.”
Staver said the licenses deputy clerks issued to same-sex couples last week are 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 said that for now, he won’t appoint a special prosecutor to investigate whether Davis committed a state crime by refusing to issue licenses. One rejected couple had asked the local prosecutor to consider charging Davis with official misconduct, a misdemeanor 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 said 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 couples that sued Davis has 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.
If Davis orders her deputies not to issue licenses after she returns to work, she would push them into their own thorny legal conundrums: Defy their boss, or a federal judge? Scott Bauries, a law professor at the University of Kentucky, suspects any deputy choosing not to issue licenses could be held in contempt.
Davis, 49, has refused to resign her $80,000-a-year job. Elected as a Democrat, she can lose her post only if she is defeated for re-election or impeached by the state General Assembly. Katherine Franke, a professor at Columbia Law School, said legislators should find the political will to remove her, 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. Several lawmakers have already filed legislation for the 2016 session to exempt county clerks from having to issue marriage licenses.
The couples who sued will ask the judge to again hold Davis in contempt if she returns to work and blocks her deputies from dispensing licenses, according to their attorney, Dan Canon.
“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.”
Associated Press writer Claire Galofaro in Louisville, Kentucky, contributed to this report.