Kim Davis has been released from jail, after only five days.
Last week, Davis, a Rowan County, Kentucky court clerk, was jailed after being held in contempt of court for her refusal to issue marriage licenses to same-sex couples despite a federal court order mandating her to do so. After the U.S. Supreme Court legalized same-sex marriages in June, Davis announced that her office would not issue ANY marriage licenses. The ensuing legal drama led to her 5 day stint at Carter County Detention Center.
A federal judge ruled on Tuesday that Davis may leave jail as long as she does not interfere with the deputy clerks in her office who have been issuing the licenses to same-sex couples. The court held that if she did interfere, “appropriate sanctions will be considered.”
The deputy clerks have been issuing licenses to same-sex couples since Davis was incarcerated. The licenses have been issued without Davis’ name, instead issued by “Rowan County, Rowan County County Clerk.” Five of the six clerks swore under oath that they were able to comply with the court’s order.
The problem with the judge’s ruling is that all marriage licenses in Rowan County are technically authorized by Davis as the clerk. There have been arguments that those issued while she was in jail are void. Her attorney, Mat Staver, has said the licenses issued without Davis’ name “are not worth the paper they’re written on.”
Davis has asked state officials to create different ways for licenses to be issued without requiring her signature.
The way this case has played out has created some very interesting constitutional questions that will have an effect on all of us. Is it a violation of your religious freedom to force you to perform tasks at your job that go against your religious beliefs? Does the analysis change if the job is a government job, where there can be no interference by anyone’s religious beliefs?
If the state of Kentucky does what Davis asks and develops another method of issuing licenses that do not require her authorization, will it set a dangerous precedent for other states to protect their disobedient government employees? Would it essentially be a carve-out from prohibited mingling of church and state?
How severe will the sanctions against Davis be when she again refuses to comply? Will she be put back in jail or will it just be a fine? If it’s a fine, will it be a one-time fine or for each act of disobedience?
Perhaps most important is the question of how we want to sanction those who directly disobey the mandates of the U.S. Supreme Court. How effective is the Supreme Court if it cannot effectuate its decisions?