Returning to work, clerk who denied gay-marriage licenses still faces questions of conscience

After a five-day stint in jail for refusing to issue marriage licenses to same-sex couples, Rowan County Clerk Kim Davis will return to work this week to face another day of reckoning.

The apostolic Christian, now a symbol of strong religious conviction to thousands across the globe, would not say Tuesday whether she will allow licenses to continue to be issued or try to block them once again, defying a federal court order that could send her back to jail.

Davis walked out of the Carter County Detention Center's front door Tuesday, arm-in-arm with her lawyer and Republican presidential candidate Mike Huckabee as thousands of supporters cheered and waved white crosses backed by a 150-voice church choir. Some in the crowd sang "Amazing Grace" and "God Bless America."

U.S. District Judge David Bunning lifted the contempt ruling against Davis, saying he was satisfied that her deputies were fulfilling their obligation to grant licenses to same-sex couples in her absence. But Bunning's order was clear: If Davis interferes with the issuance of marriage licenses to same-sex couples upon her return, she could go right back to jail.

"I just want to give God the glory. His people have rallied, and you are a strong people," the clerk told the crowd after stepping outside, her arms raised like a victorious boxer, to the blaring "Rocky"-sequel theme song "Eye of the Tiger."

Davis did not speak during a brief appearance in front of the news media seconds after her release, however, except to smile and nod when a reporter asked if her decision had been worth it since it landed her in jail.

"Kim cannot and will not violate her conscience," said Mat Staver, founder of the Liberty Counsel, the Christian law firm representing Davis. As for whether she will issue licenses, Staver said only: "You'll find out in the near future."

Staver said the licenses issued to same-sex couples by Davis' employees last week were not valid since they were not given under Davis' authority. But the Kentucky attorney general's office said it believes otherwise.

How Davis will act could become clear as early as Wednesday morning. At least one of the four couples that sued her have not yet received a marriage license. Five of Davis' six deputy clerks — all except her son, Nathan — agreed to issue licenses to gay couples with Davis behind bars. In lifting the contempt order, Bunning asked for updates on the clerks' compliance every two weeks.

Scott Bauries, a law professor at the University of Kentucky, said if Davis returns to work and orders her deputies not to issue licenses, she would be pushing them into a thorny legal conundrum of their own: They would have to choose whether to defy a federal judge or defy their boss. Bauries suspects that any deputy who chooses not to issue licenses could be held in contempt.

Davis, 49, has refused to resign her $80,000-a-year job. As an elected official, she can lose her post only if she is defeated for re-election or is impeached by the state General Assembly. Katherine Franke, a professor at Columbia Law School, said the state legislature should find the political will to boot Davis from office since she has ignored her oath of office in favor of her religious conviction.

"The claim she's making is a clear loser. It's a political claim, it's not a legal claim," Franke said. "That's why she lost on the district level and the circuit level and she will continue to lose. She's fighting for justice on the level of religious law. But we don't live in a theocracy."

It is unlikely the Kentucky state legislature would impeach Davis. The Republican president of the state Senate spoke at a rally at the state capitol and filed an amicus brief asking Bunning not to hold Davis in contempt of court for defying his order. Several lawmakers have already filed legislation for the 2016 session that would exempt county clerks from having to issue marriage licenses.

Davis was locked up last Thursday for the boldest act of resistance by a public official yet to the U.S. Supreme Court ruling in June that effectively legalized same-sex marriage across the nation. Citing "God's authority" and her belief that gay marriage is a sin, Davis stopped issuing all marriage licenses.

Two gay couples and two heterosexual ones sued her. Bunning ordered Davis to issue the licenses, and the Supreme Court backed him. But she still refused and was held in contempt of court and hauled off to jail in handcuffs, igniting protests from religious conservatives. They rallied for days at her office, at the jail and outside the judge's home.

Dan Canon, an attorney for the couples who sued, said they will ask the judge to again hold Davis in contempt if she returns to work and blocks her deputies from dispensing licenses.

"We are hoping she is going to comply with it. We'll have to see," Canon said. "But if experience is a teacher, Ms. Davis just doesn't believe that court orders apply to her."

___

Associated Press writer Claire Galofaro in Louisville, Kentucky, contributed to this report.