U.S. District Court Judge David Bunning, having been shown that marriage licenses are being handed out again in Rowan County, Kentucky, has ordered the release of Clerk Kim Davis. Davis, an elected official, had been held in contempt for refusing to allow any marriage licenses to be distributed because of her objection to the Supreme Court's decision ordering all states and the federal government to recognize same-sex marriages.
In her absence, her deputy clerks have agreed to hand out marriage licenses. The order from Bunning releasing Davis states, "Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples" (bold in original). If she attempts to stop her clerks from handing out licenses, he will consider new "sanctions." Furthermore, he ordered the deputy clerks under Davis to file a report every two weeks to let him know they're complying with the order to hand out marriage licenses.
Davis supporters had put together a rally outside the jail where she had been imprisoned, and GOP candidate and former governor Mike Huckabee was on hand to insert himself into her post-release press conference, saying with a straight face, "People are tired of the judicial activism that takes people's freedoms away." (Relevant: Check out Ron Bailey's blog post earlier today about the influences marking the rise of the "culture of victimhood.")
What is not clear is actually happens next. According to Davis' lawyer, Mat Staver of Liberty Counsel, speaking for Davis at the press conference, the marriage licenses Davis' deputy clerks handed out last week were not legal, and he suggested that it was a criminal violation for them to have been issued. He also refused to directly answer the question of whether Davis would cooperate with Bunning's order and not interfere with the handing out of marriage licenses. Staver said she would not violate her conscience and we would "find out in the near future" what was going to happen next.
Staver did reiterate that what Davis wants is to be able to be a conscientious objector. Because of her position and Kentucky law, all the marriage licenses coming from Rowan County must have her name on them. She wants her name taken off. This, obviously, would require some changes in the law, and that's going to take some time.
And let's just comment on that for a moment. There's this attempt at a defense that Kentucky is caught up in this because it was caught unprepared by the Supreme Court decision in Obergefell v. Hodges. Libertarian-leaning GOP Rep. Thomas Massie is calling the judge's action "premature" because the legislature needs to update the laws.
Well … whose fault is that, exactly? It was widely—extremely widely, even among conservatives—predicted that the Supreme Court decision would come down exactly as it did. Legislators in North Carolina were able to predict this outcome. They set up a system (over the governor's objection) that would allow county officials responsible for registering marriages to decline on religious grounds. But it also obligated each county to make sure somebody in each jurisdiction would fill in. So somebody like Kim Davis could refuse and let her clerks deal with it.
That seems to be clearly what Davis and Staver are going for here, but it's not quite clear what's going to happen in the meantime while such a procedure gets hammered out. Or rather: If such a procedure gets hammered out. There's no guarantee that the legislature is going to be willing to let an elected official shift away her job duties on the basis of a religious exception.
Also: Gay marriage is back on the menu at the next GOP debate, isn't it?