It has only been a week since Kim Davis, the Kentucky county clerk jailed for refusing to issue marriage license to gay couples, returned to work. But she is already the target of a new court filing, this one alleging that altered marriage licenses issued from the office of the defiant clerk are humiliating and possibly invalid.
According to court documents filed by the American Civil Liberties Union Monday, Davis confiscated licenses issued to gay couples during her short stay in jail and distributed new ones that removed all mention of the county clerk’s office. Instead, the documents include what the ACLU lawyers viewed as a churlish note that they were issued “pursuant to Federal Court Order.”
Davis, an Apostolic Christian, stopped issuing all marriage licenses in June, after the Supreme Court ruled that same-sex couples have a right to marry throughout the country under the federal Constitution. Citing her right to religious liberty and belief in “God’s definition of marriage,” she asked to be excused from issuing licenses to couples whose marriages she didn’t agree with.
Instead, U.S. Court Judge David Bunning ordered her to comply with the law or go to jail. Davis chose the latter option, making her a hero to some who believed that the Supreme Court’s decision infringed on religious liberty.
She spent five days in a cell at the Carter County Detention Center, while her deputies issued licenses to the triumphant same-sex couples who had been turned back by Davis for months. Those documents were issued not in Davis’s name, but by “Rowan County,” according to Monday’s court filing, but they were good enough for the courts and for the couples who received them. When Davis was released, she was ordered not to interfere.
But, according to the ACLU and to a report from one of her deputies, Brian Mason, Davis did interfere.
“Rather than standing aside while Deputy Clerk Mason issued the same marriage licenses upon which this Court relied in its September 8 Order lifting the civil contempt finding and releasing her from custody, Davis “confiscated all the original forms, and provided a changed form which deletes all mentions of the County, fills in one of the blanks that would otherwise be the County with the Court’s styling, deletes her name, deletes all of the deputy clerk references, and in place of deputy clerk types in the name of Brian Mason, and has him initial rather than sign,” Mason said in his notice filed with Bunning.
His lawyer told CNN that the deputy clerk was worried that the altered licenses were invalid, putting him in violation of the law.
ACLU lawyers representing four Kentucky couples — two gay, two straight — wrote that the validity of the licenses is “questionable at best.” What’s more, they argued, “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 asked that Bunning order the county clerk’s office to reissue the confiscated licenses and stop Davis from interfering. If she does so again, they say, marriage licensing duties should be reassigned from the clerk’s office to a receivership, allowing another person or institution to oversee the process and ensure that licenses are legal.
Kentucky officials haven’t said whether the altered licenses are actually invalid, and the ACLU seems unsure of that itself.
Davis’s attorney Mat Staver of the Liberty Counsel law firm told the Associated Press he would respond to the ACLU’s motion on Tuesday, noting that Kentucky’s Democratic Gov. Steve Beshear said last week that the initial altered licenses (the ones issued by “Rowan County” rather than “Kim Davis, County Clerk”) would be recognized by the state.
“Kim Davis has made a good-faith effort to comply with the court’s order,” Staver told the AP. “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.”