[Breaking news update, 11:15 a.m. ET]
Carmen and Shannon Wampler-Collins walked out of the Rowan County, Kentucky, clerk’s office with a marriage license Monday morning. They were the first same-sex couple to apply for a marriage license since clerk Kim Davis returned to her job. Davis vowed not to issue licenses to gay couples, but said she wouldn’t stop her deputies from doing so.
[Previous story, published at 9:30 a.m. ET]
Kim Davis, county clerk of Rowan County, Kentucky, returned to work Monday, saying she will not issue any marriage licenses that go against her religious beliefs — but she left the door open for her deputies to continue to issue marriage licenses to same-sex couples, as long as those documents do not have Davis’ name or title on them.
Her statement produced more questions than answers.
She acknowledged that she is not sure on the legality of licenses altered in such a way.
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.
On her first day back at work, she read a statement calling for state authorities to find a solution to accommodate her religious beliefs.
“Effective immediately, and until an accommodation is provided by those with the authority to provide it, any marriage license issued by my office will not be issued or authorized by me,” Davis said.
In the meantime, she offered an interim resolution, but it is unclear if it passes legal muster:
If her deputies — who had been issuing marriage certificates to same-sex couples in her absence — continue to do so, Davis said she will not stop them, but that those certificates must not have her name or title, and must instead state that they are issued pursuant to a federal court order.
U.S. District Judge David Bunning “indicated last week that he was willing to accept altered marriage license even though he was not certain of their validity,” Davis said. “I, too, have great doubts whether the license issued under these conditions are even valid.”
Parsing Davis’ statement
Davis was clear on one thing: She will not sign any marriage licenses for same-sex couples, and her deputies are not authorized to issue them either.
But, she added, if her deputies go against her orders and provide marriage certificates to same-sex couples anyway, she will not take any action against them — apparently leaving a door open.
So, is Davis continuing to defy the order from the judge? Even experts weren’t sure at first glance.
“I think that’s what she said,” Toobin said.
Toobin said that Kentucky law might allow for a deputy’s signature to be valid on a marriage license, even without the clerk’s consent. But if the documents are altered to remove Davis’ name and title, a court may have to rule on their validity.
Governor: No special session
Since being released from jail last week, Davis has been lying 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 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.
Davis’ attorney, Mat Staver, said a solution would be to remove not just 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.”
