A Kentucky clerk who was jailed for refusing to issue marriage licenses to same-sex couples can now go free, a judge said Tuesday — albeit with a caveat she may not be willing to accept.
U.S. District Judge David Bunning ordered that Rowan County Clerk Kim Davis be released from jail Tuesday — five days after he sent her there — on the grounds that her deputies issued marriage licenses to same-sex couples in her absence.
But Bunning’s new order says Davis, once free, still cannot interfere with her deputies issuing marriage licenses to all legally eligible couples.
It wasn’t immediately clear how Davis would react to the order, but she has said she will not authorize her office to issue marriage licenses to same-sex couples if her name remains on the certificate.
Bunning’s order makes no mention of revising the licenses to accommodate Davis, who says issuing a license with her name on it would violate her Christian convictions against same-sex marriage.
The latest order came on the day that Republican presidential hopefuls Mike Huckabee and Sen. Ted Cruz of Texas were to meet with Davis in the Carter County Detention Center, where she has been held since last week.
Contempt of court
Last week, Bunning ordered Davis to jail after finding her in contempt of court for refusing to issue marriage licenses to gay couples in Rowan County following June’s U.S. Supreme Court ruling legalizing same-sex marriage.
Davis’ legal team has filed appeals to the 6th U.S. Circuit Court of Appeals. It is asking that the state take her name off the licenses — a move that her attorneys say would accommodate Davis while allowing same-sex couples to receive licenses.
“If (Davis’ deputies) can issue licenses under someone else’s authority … Kim Davis would not stand in the way of that,” one of her attorneys, Roger Gannam, told CNN’s “New Day” on Tuesday.
Davis’ legal team on Monday asked the appeals court for an injunction that would prompt Kentucky Gov. Steve Beshear to remove her name from the licenses — something her attorneys say Beshear has the power to do through an executive order.
The lawyers say removing Davis’ name would be a reasonable accommodation, such as that required under Kentucky’s Religious Freedom Restoration Act.
The 2013 law prohibits the state government from substantially burdening a person’s freedom of religion unless the government both proves it has a compelling interest in doing so and has used the least restrictive means to do it.
Davis should not have to resign or be jailed, Gannam said, because “accommodation of religious conscience is the law in Kentucky, including for elected officials.”
“It’s the duty of the Kentucky government to accommodate that, and they very easily could do so,” Gannam said. “Gov. Beshear is the one who should do his job or resign.”
Governor: No special session
Beshear’s office said Monday he wouldn’t respond to news of the appeals, saying the case was a “matter between her and the courts.”
The state Legislature also could pass a law removing clerks’ names from the licenses, but it won’t be in session until January.
Beshear said the Legislature can do as it wishes, but he won’t call lawmakers for a special session to deal with the issue, adding that doing so would cost “hundreds of thousands of dollars of taxpayers’ money.”
‘Her spirits remain high’
After Bunning found Davis in contempt of court Thursday, five of her deputies agreed to issue marriage licenses in her absence. The Rowan County clerk’s office began doing so Friday.
Supporters of Davis rallied Monday at two locations — outside the judge’s home and the detention center.
“Her spirits remain high,” another Davis attorney, Horatio Mihet, said Monday. “She was brought to tears when she heard that so many people outside the jail and around the country are praying for her.”