- the licenses would be issued, as a matter of Kentucky law, under the authority of someone other than Davis or the County Clerk, for instance the County Judge Executive or a deputy clerk who was willing to put his name on them, and
- the licenses reflected that accommodation, by including the name and office of the authorizing person (again, the Judge Executive or deputy clerk or whoever else) instead of Davis’s name and office.
Davis’s objection to the federal judge’s order — and the licenses and certificates issued pursuant to that order — is that the licenses and certificates are still being issued (in her view) under her ostensible authority, even though Davis has not authorized them.
This accommodation is somewhat broader than the one I originally discussed in my post Friday (which was just removing her name from the licenses and certificates, and possibly replacing it with “Rowan County Clerk”). She would object to the documents noting that they come from the office “Rowan County Clerk,” and she would also want an official declaration from the court that the licenses aren’t being issued under her authority. It’s possible that these demands go a bit too far for the Kentucky RFRA (as I noted in my post, the more burdensome a requested accommodation is, the less likely it is that a court will grant it), though it’s hard to tell, given that RFRAs are written in general terms, and a lot of the line-drawing questions are left for judges to make on a case-by-case basis. Still, the accommodation doesn’t seem tremendously burdensome, or that different from what’s already being done under the judge’s order, so it’s possible that this is what will happen.
However, (1) whatever Davis thinks of the federal judge’s order, she has to comply with it or risk being jailed again, though she is of course free to continue appealing it; and (2) my tentative sense — given Pennhurst State School & Hospital v. Halderman (1984) — is that to get an injunction mandating an accommodation under the Kentucky RFRA, she would have to refile her claims in state court, because a federal court would be unable to issue such an injunction ordering compliance with a state statute.