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Less than 24 hours before Kentucky’s famously pious county clerk is set to return to work, just about every pundit, politician, theologian, legal scholar — and oh yeah, same-sex couple in Rowan County — wants to know: What will Kim Davis do?
“I don’t know exactly what she is going to do,” her defense attorney said Sunday. “That is Kim’s ultimate decision.”
Mat Staver told CNN his client was fully aware of the law and of the court’s ruling, but that she was still undecided about what she’ll do if a same-sex couple applies for a marriage license in Rowan County. “We’ll find out what Kim does when she goes to work on Monday.”
Davis spent five days behind bars this month for refusing to issue same-sex marriage licenses — something she is legally obligated to do under state and federal law.
U.S. District Judge David Bunning ultimately released Davis after her deputies fulfilled those obligations in her absence.
But now that the boss will be back in the office, will they continue to do so? Or will she interfere?
“If Ms. Davis stops them from issuing licenses, then we are right back where we started,” said CNN senior legal analyst Jeffrey Toobin. “And Judge Bunning has made it quite clear, he will lock her back up.”
Governor: No special session
In the five days since being released from jail, Kim Davis has been laying low and opening boxes of letters sent to her while she was in jail.
“I am deeply moved by all those who prayed for me,” she said last week in a statement . “All I can say is that I am amazed and very grateful.”
Davis’ legal team has been busy on her behalf, filing motions that suggest her brief stint in jail did nothing to change her mind.
On Friday, for example, her defense attorneys asked Bunning for “injunctive relief,” which essentially amounts to a request that she be exempt from having to issue marriage licenses to same-sex couples until the matter is resolved by the Federal Court of Appeals. The judge denied the appeal.
Staver said a solution would be to remove not just Kim Davis’ name and office from the marriage licenses themselves, but from the process entirely. Have the state issue them instead, he said.
Sounds simple enough, but under current Kentucky state law, the authority to issue marriage licenses rests solely with each of the state’s 120 county clerks, meaning it would take an act of the legislature to transfer that authority. The legislature, however, doesn’t convene until January 5, and Gov. Steve Beshear has said he has no intention of calling lawmakers back to Frankfort for an emergency session before then.
Legislation in the works
Kentucky state Senate President Robert Stivers told CNN last week that a legislative solution was in the works and it would likely pass quickly when lawmakers convene in January.
But that is still some three months away, three months in which Davis, who refuses to resign, will still have the authority to issue — or to not issue — marriage licenses in Rowan County.
“It’s a very, very difficult decision that no one wants to have,” said Staver. “Choose your job, or choose your faith.”
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