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Kentucky clerk Kim Davis might have violated yet another federal court order to not interfere with the issuance of marriage licenses in Rowan County.
When Davis was released from jail earlier this month, US District Judge David Bunning ordered her to "not interfere in any way, directly or indirectly" with the issuance of marriage licenses. At first, Davis appeared to comply — putting an end, it seemed, to the national drama over Davis's refusal to let her county office issue any marriage licenses, as required by state and federal laws, due to her opposition to same-sex marriages.
But it appears Davis did interfere. According to a report filed by counsel for deputy clerk Brian Mason, when Davis went back to work, she confiscated all of the original forms for marriage licenses and altered them to remove any mention of the clerk's office, instead noting that the licenses are being issued by a "Notary Public" and "Pursuant to Federal Court Order #15-CV-44 DLB."
The changes attempt to make it clear that Davis and her office have nothing to do with the licenses, and they're instead being issued only as a result of a federal court order. This is the religious accommodation Davis always wanted: Her conflict is that Kentucky law requires her name and office to be on the licenses, which she sees as a tacit endorsement, on her part, of same-sex marriages. By removing her name and her office from the licenses, she feels she can comply with her legal duty to issue marriage licenses without taking part in any tacit approval of gay rights.
As Georgetown Law professor Marty Lederman at the blog Balkinization wrote, the new licenses will likely stand up to legal scrutiny — especially after both Gov. Steve Beshear and Attorney General Jack Conway said the licenses are valid. (Still, the ACLU filed another court challenge against Davis over the changes, out of concern that the new licenses aren't legally valid.)
But even if the marriage licenses are legally valid, Davis may still have violated the federal court order. The court, after all, made it clear that Davis was not supposed to "interfere in any way, directly or indirectly." Confiscating forms for marriage licenses and altering them certainly seems like interference — and it may send Davis back to jail, or at least get her fined, if the court decides to punish her.
