Brian Mason, the deputy Rowan County clerk who has agreed to issue marriage licenses despite the religious objections of his boss, Kim Davis, is "in a difficult position," his attorney told U.S. District Judge David Bunning on Friday.
In a status update to the judge, attorney Richard Hughes of Ashland said Mason wants to comply with Bunning's order to issue marriage licenses to all qualified applicants at the Rowan County courthouse, including same-sex couples. The other five deputy clerks decided "by mutual agreement" to let Mason handle that task, Hughes wrote.
But Mason fears that Davis might have rendered the marriage licenses invalid early Monday with changes she made. The changes included deleting her name and title, and requiring Mason to sign as a public notary, not as a deputy clerk, Hughes said. Each license now states, "Pursuant to federal court order."
"Kim Davis came to the office and confiscated all the original forms and provided a changed form which deletes all mention of the county," Hughes wrote to the judge. "Mr. Mason is concerned because he is in a difficult position that he continues to issue the licenses per the court's order, ... but now, with these changes, may in fact have some substantial questions about validity."
Davis, an Apostolic Christian, has refused to issue marriage licenses in Rowan County since the U.S. Supreme Court legalized same-sex marriage in June. She spent five days in jail for contempt of court this month after violating Bunning's order to resume issuing licenses. Bunning released her once Mason began issuing licenses in her absence, under his order.
Also Friday, Davis' lawyers filed an emergency motion to stay Bunning's preliminary injunction, which he expanded at her Sept. 3 contempt hearing to require licenses for all qualified marriage license applicants rather than just the roughly half-dozen couples who sued her. Davis already has asked the U.S. 6th Circuit Court of Appeals for the same emergency stay, but that court denied it Thursday and told her to present her motion to Bunning.
Finally, the couples suing Davis asked Bunning on Friday for an expedited ruling on their request for class-action status, so their lawsuits demanding the right to marriage licenses would be expanded to include all qualified couples in Rowan County. Bunning previously put this request on hold while other parts of the case were decided.
In a footnote to that motion, the couples' attorneys criticized the newly altered Rowan County marriage licenses.
"These alterations call into question the validity of the marriage licenses issued, create an unconstitutional two-tier system of marriage licenses issued in Kentucky and do not comply with this court's Sept. 3 order prohibiting Davis from interfering with the issuance of marriage licenses. Plaintiffs are exploring legal options to address these material alterations," wrote Heather Weaver of the American Civil Liberties Union.