Kim Davis gets to choose again.
The Rowan County clerk returns to work Monday. If she obeys the order of U.S. District Judge David Bunning to not interfere with her deputy clerks issuing marriage licenses — which no longer bear her name — then the national controversy over her religious objection to same-sex marriage should wind down.
However, if Davis somehow tries to stop her deputies from assisting betrothed couples, then expect the fireworks to continue. Bunning is keeping in touch with the deputy clerks through individual defense lawyers whom he appointed. He also might be watching Twitter.
"She's very likely looking at more jail time if she doesn't obey," said Mark Wohlander, a defense lawyer and former federal prosecutor in Lexington. "Judge Bunning has already warned her, held her in contempt of court, jailed her for five days and then ordered her not to re-offend when he released her. I think he's been pretty clear on this."
Wohlander — a conservative who sympathizes with the clerks' situation — said Davis could have "a pretty good chance" at prevailing in several lawsuits she's involved in with Rowan County couples and Gov. Steve Beshear. Among other defenses, Davis cites her right under the Kentucky Religious Freedom Act to not issue marriage licenses to gay couples because doing so would "substantially burden" her religious beliefs.
But that contest should be held in a courtroom, not at the county clerk's office, on sidewalks filled with protesters or behind bars, Wohlander said.
"I always tell my clients, 'Don't do anything that's gonna get you thrown in jail,'" he said. "That doesn't get us to the point of your case. You're not doing your case any good by making yourself a martyr."
Davis and her attorneys at Liberty Counsel, a religious advocacy group, won't say what the clerk plans to do Monday, other than follow the dictates of her conscience.
"I love God, love people and love my work. I hope we will continue to respect these values and that America remains a place where all three can live in harmony," Davis said in a prepared statement last week, taking a few days off work following her release from the Carter County jail.
As he released the clerk from jail last Tuesday, Bunning instructed her not to interfere, directly or indirectly, with the efforts of her deputy clerks to issue licenses. Previously, at Davis' contempt hearing, Bunning ordered the deputies to give out marriage licenses to qualified applicants or face their own contempt sanctions. They needn't worry about Davis firing them, the judge told the deputy clerks.
"I would doubt that there would be any employment ramifications for doing so because you're following the court's order," Bunning told them. "But I'm confident that that's not going to happen. I have every belief that Ms. Davis is sincere and wouldn't do anything like that to begin with."
There are still months of litigation ahead of Davis.
In several cases pending before Bunning and the 6th U.S. Circuit Court of Appeals, local couples sued Davis for refusing to issue marriage licenses following the U.S. Supreme Court's decision June 26 legalizing gay marriage. Although licenses are flowing again, the couples demanded damages and legal fees, the latter of which are mounting. Davis also is suing Beshear for failing to accommodate her religious beliefs after the Supreme Court ruled. The governor has asked for that suit to be dismissed, arguing that her allegations are groundless. Late Friday, Bunning issued an order denying Davis' request for a preliminary injunction that would have prevented Beshear from telling her and the other clerks to obey the Supreme Court decision.
But the biggest attention-grabber in the cases has been Bunning's preliminary injunction ordering Davis to resume issuing marriage licenses — the order that landed her in jail because she refused to obey it, after unsuccessfully seeking emergency stays from higher courts.
The media will descend on Morehead again Monday to see what Davis does, as will a fresh batch of protesters who plan to demonstrate outside the Rowan County courthouse to show the clerk their support or opposition.
Among the new arrivals will be a "patriot group," the Oath Keepers, who gained fame last year patrolling the Nevada ranch of anti-government activist Cliven Bundy. The Oath Keepers say they are putting "boots on the ground" in Rowan County to protect Davis and prevent her from being incarcerated again. Former Jackson County Sheriff Denny Peyman is helping organize the local effort, the group announced last week.
"A judge took an elected official, a citizen of the United States, and detained them without cause, without paperwork, without due process," Peyman said in a video the group posted online. "I still think he needs to know that he's not out of the woods just because they let her out, you know, that he's still gonna be held accountable."
While Davis was in jail for contempt of court, one of her deputies, Brian Mason, followed Bunning's order by issuing marriage licences to same-sex and opposite-sex couples. Mason says he'll continue cooperating with couples regardless of what Davis does when she returns.
Although Davis' attorneys have questioned the validity of those licenses, which no longer bear Davis' signature or name, other lawyers — including the Rowan County attorney — say the deputies are legally authorized to issue licenses on their own.
Jamie Abrams, who teaches family law at the University of Louisville, said case law suggests that if both parties to a marriage believe in good faith the marriage is valid, then it's valid, regardless of the precise wording on the paperwork filed at the courthouse. Likewise, she said, other than the two spouses, nobody has standing in court to challenge the validity of a marriage license.
Rowan County's shaky status quo — with deputies issuing licenses not signed by Davis — could be a workable resolution for now, unless Davis interferes, Abrams said.
"I think what's most important in this case, from my perspective as a family law practitioner, is that the people of Rowan County can get the services from their courthouse to which they're entitled," Abrams said.
John Cheves: (859) 231-3266. Twitter: @BGPolitics. Blog: bluegrasspolitics.bloginky.com