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End Not Necessarily in Sight in the Kim Davis Controversy

After a five-day stint in jail, Rowan County Clerk Kim Davis won’t return to work until Monday, her attorneys say.

She'll also not issue marriage licenses to same-sex couples when she returns to her Morehead office, said Mat Staver, chair of Liberty Counsel, the law firm representing Davis.

“Unless her name and her authority is taken off the licenses, she will not allow those licenses to be issued under her name,” Staver said on Tuesday before Davis was released.

Davis' stance raises questions about what could come next in a court case that's gotten national attention in recent days.

Davis was jailed last week after defying a federal judge's order to resume issuing marriage licenses, a facet of her duties she refused to do following the U.S. Supreme Court's ruling legalizing same-sex marriage. Davis has said issuing the documents to same-sex couples would violate her deeply held religious beliefs.

If Davis stops the issuance of marriage licenses from her office when she returns to the clerk's office, U.S. District Judge David Bunning could once again hold her in civil contempt and impose fines or jail time.

Davis could also face criminal contempt charges and receive a prison sentence of up to six months, said Sam Marcosson, a law professor for the University of Louisville.

"If Davis once again defies the court’s authority, it certainly wouldn’t surprise me if Judge Bunning reached the conclusion that such willful and repeated defiance requires punishment — for the sake of deterring others and reinforcing the principle that the court’s authority is crucial to the rule of law," Marcosson said.

After Bunning sent Davis to the Carter County Detention Center for disobeying his order, deputy clerks — under threat of contempt — began granting the forms.

Bunning released Davis on Tuesday, saying that his order was satisfied since the county was issuing marriage licenses again.

If Davis interferes with the issuance of marriage licenses — "directly or indirectly," as Bunning put it in his order releasing her from jail — the judge could see fit to punish Davis for her actions.

"The difference is that with civil contempt, the goal is to gain the defendant's compliance, not to punish; whereas with criminal contempt, punishment is one of the goals," Marcosson said.

How Davis' saga could finally end is murky.

Davis, a Democrat, was elected to the clerk's office last year. She'll have it until 2018. She could be removed from office only through impeachment by the General Assembly; it appears unlikely that state legislators, some of whom are sympathetic to her, would take such a step.

Meanwhile, several legislative leaders have expressed support for the idea of changing marriage license laws to remove clerks from the process.

While Bunning appears to be satisfied with the present situation in Rowan County, Davis’ attorneys have said marriage licenses issued while she was in jail aren’t valid. They say those licenses don't include Davis' name and aren't authorized by her.

Bunning said he’ll be monitoring the clerk’s office.

Deputy Clerk Brian Mason said on Wednesday morning that he will continue to issue the forms when Davis returns, even if she instructs him to do otherwise.

Deputy clerks have been issuing marriage licenses but leaving Kim Davis’ name off the forms. Staver said deputy clerks aren’t allowed to issue marriage licenses without Davis’ authority.

But Kentucky’s marriage laws explicitly mention deputy county clerks as having the power to issue marriage licenses.

“It’s clear that the license can be issued by the deputy clerks,” said Robin Wilson, a law professor at the University of Illinois. “Judge Bunning has sort of solved that impasse by telling these deputies, you all are either going to do this or you’re going to jail, too.”

Last week, all but one of the Rowan County deputy clerks expressed misgivings over having to issue marriage licenses to same-sex couples. Still, all but one also agreed to obey the judge’s order to grant the licenses to all couples — so at least one person in the office will be willing to issue the forms.

There are a few categories of couples who can’t get married in Kentucky: relatives, minors, people who are already married, for example. But if a couple meets the qualifications according to the law, the county clerk is required to issue a marriage license, said Louise Graham, a law professor at the University of Kentucky.

“I think that’s where she’s got a problem," Graham said.

Davis can’t use her beliefs or personal judgment to further limit who gets a marriage license from her office, Graham said.

As for the validity of the forms that have already been issued, Graham said once a license is issued, there are no take-backs.

“The people who got those marriage licenses really didn’t have any control over whatever the defect in the marriage license was,” Graham said. “The people who issued the marriage licenses don’t have any standing to challenge the validity of the marriage.”

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