Why Kim Davis Isn’t Off The Hook Yet

Rowan County Deputy Clerk Brian Mason issues an altered marriage license to Shannon and Carmen Wampler-Collins. CREDIT: AP PHOTO/TIMOTHY D. EASLEY
Rowan County Deputy Clerk Brian Mason issues an altered marriage license to Shannon and Carmen Wampler-Collins. CREDIT: AP PHOTO/TIMOTHY D. EASLEY

It seemed like the situation in Rowan County, Kentucky had largely been resolved: County Clerk Kim Davis had returned to work after being held in contempt and she was — seemingly — allowing marriage licenses to be issued. But there was a catch; she had altered the marriage license form to remove the office’s authority. Whether those licenses are valid as such is a question the couples could not leave unanswered, and given she was ordered by the court not to interfere with the marriage licenses, the alteration is arguably a violation of that order.

That’s why the ACLU filed a new motion on behalf of those couples this week, demanding that U.S. District Judge David Bunning order Davis to allow her office to issue licenses that are unaltered. The motion notes that Davis specifically testified during her contempt hearing that she does not have “the discretion to create a different kind of license that would not require [her] authorization for it to be issued.” But that is exactly what she did.

Though Deputy Clerk Brian Mason had been issuing licenses while she was held in contempt, upon returning to the office, Davis “made substantial and material alterations to the forms that include forcing Mason to issue the licenses as a ‘notary public’ rather than a Deputy Clerk, eliminating any mention of the County, and changing the forms to state instead that they are issued ‘Pursuant to Federal Court Order #15-CV-44 DLB.’”

The motion acknowledges that “Kentucky courts have yet to address whether defects in a license of this magnitude can void the marriage,” but suggests that the licenses are vulnerable to a future challenge of their validity. Indeed, Kentucky law requires that a marriage license bear “an authorization statement of the county clerk issuing the license” as well as “the signature of the county clerk or deputy clerk issuing the license.”

Davis is violating the order to issue marriage licenses without interfering, the motion alleges, and should thus be held in contempt once again. Or, as Slate’s Mark Joseph Stern put it, “Kim Davis may be heading back to jail.”

Bunning would seemingly be put in a unique position to interpret state law as a federal judge, but he would not necessarily need to draw any conclusions about the validity of the licenses. Simply having sufficient reason to doubt their validity could be enough to convince him that, by altering the licenses, Davis did in fact violate his order not to interfere with the process.

As these new questions prolong the case against her, Davis has begun doing some of her first public interviews. On ABC’s Good Morning America Tuesday morning, she claimed to have gay friends, admitting that she refused to issue a license to them. “I can’t put my name on a license that doesn’t represent what God ordained marriage to be,” she explained.

She also spoke to Fox News’ notoriously conservative Todd Starnes, who praised her for her faith in God through her time in jail. “I walked and prayed and sang praises in the jail cell and just really drew comfort from God’s word when I was there,” Davis told him. “The Lord died and suffered so terribly for us and I counted such a privilege and an honor and a joy that I would have to sit a mere five days in jail to uphold His word. For me, it’s worth it.”

Davis’ attorney, Mat Staver of the Liberty Counsel, an anti-LGBT hate group, has also continued to give interviews to the press. His new line is to claim that same-sex couples are out to scalp her. “The ACLU’s motion to again hold Kim Davis in contempt reveals that their interest is not the license but rather a marriage license bearing the name of Kim Davis,” he told the AP. “They want her scalp to hang on the wall as a trophy.” He said the same thing to Starnes, but in neither interview did he acknowledge that as the elected county clerk, it is Davis’ job to authorize marriage licenses, and that is all that she has been ordered to do.