FRANKFORT, Ky. – Gay couples in Kentucky are questioning the validity of altered marriage licenses issued by a defiant county clerk and have asked a federal judge to order her to reissue the licenses or put the office in receivership and have someone else do it.
Rowan County Clerk Kim Davis stopped issuing all marriage licenses in June after a U.S. Supreme Court ruling effectively legalized gay marriage nationwide. Two gay couples and two straight couples sued her. A federal judge ordered Davis to issue the licenses, and the U.S. Supreme Court upheld that order.
But Davis refused, citing "God's authority." That's when U.S. District Court Judge David Bunning threw her in jail, prompting a fierce debate in the public square about religious liberty versus the civil rights afforded to all U.S. citizens.
Davis' office issued marriage licenses while she was in jail, but the licenses did not include her name. U.S. District Judge David Bunning ruled those licenses were valid and released Davis on the condition that she not interfere with her employees. She was greeted at the Carter County Detention Center by a crowd of thousands and a church choir, flanked by her attorney and Republican presidential candidate Mike Huckabee. Davis is a Democrat.
When she returned to work last week, she confiscated the marriage licenses and replaced them. The new licenses say they were issued not under the authority of the county clerk, but "pursuant to federal court order." Davis said this accommodation preserves her conscience while also granting licenses to same-sex couples.
But on Monday, lawyers for the American Civil Liberties Union wrote that the validity of the altered licenses is "questionable at best," and that the new licenses bring "humiliation and stigma" to the gay couples who receive them. They asked U.S. District Judge David Bunning to order Davis' office to reissue the licenses. If Davis interferes, the lawyers say Bunning should place her office in a receivership for the purposes of issuing marriage licenses.
"The adulterated marriage licenses received by Rowan County couples will effectively feature a stamp of animus against the LGBT community, signaling that, in Rowan County, the government's position is that LGBT couples are second-class citizens unworthy of official recognition and authorization of their marriage licenses but for this Court's intervention and Order," the lawyers for the couples wrote in a court filing.
Mat Staver, Davis' attorney and founder of the Liberty Counsel law firm, did not directly respond to the ACLU's request for Bunning to put the office in a receivership. Staver said he would formally respond to the ACLU's motion on Tuesday. But he noted that Democratic Gov. Steve Beshear said last week the altered marriage licenses would be recognized by the state.
"Kim Davis has made a good-faith effort to comply with the court's order," Staver said. "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. They want her scalp to hang on the wall as a trophy."
Sam Marcosson, a constitutional law professor at the University of Louisville, said such receiverships are "unusual and extraordinary," and are generally reserved for situations where other legal remedies are unable to end an ongoing violation of the law. Marcosson described what the plaintiffs are now requesting as a "limited takeover" of her office. The judge could appoint another person to oversee the issuance of marriage licenses, both to ensure that the licenses are issued legally and to protect the deputy clerks, who are now left with the difficult choice to either defy their boss or defy a judge.
"It's almost a worst-case scenario," he said. "The worst case scenario would be to send her to jail again."
The judge has wide discretion on who might be appointed. It could be a lawyer, another Rowan County public official or any citizen the judge trusts to carry out his orders impartially, Marcosson said. He said the judge will likely call a hearing, where he might hear testimony about the process Davis undertook to alter the licenses or the instructions she gave to her deputy clerks.