Kentucky’s activist county clerk Kim Davis will return to work on Monday with a court instruction to cease preventing marriage licenses from being issued by her office – while experts denied her lawyers’ claims that licenses granted while she was in jail are not valid.
Davis was released on Tuesday afternoon after six days behind bars to a of pop music, presidential candidates and cheering supporters waving crosses and biblical signs.
But while Davis is free, several questions remain about the fallout from her incarceration and what happens next.
Will she allow marriages?
While Davis was in custody, her deputies issued 10 marriage licenses, including, as of Wednesday afternoon, seven to same-sex couples.
District judge David Bunning had jailed her for contempt of court after she all marriage licenses in religious protest at the national by the US supreme court in June.
A condition of her release from jail on Tuesday is that she is not to interfere with others in her office issuing licenses, a compromise plan that she had previously rejected.
Neither Davis nor her legal team has indicated whether she will try to block licenses after she returns to work. If she does, she could be heading back to jail.
“This is all ongoing, it’s not over by any stretch of the imagination,” said Sarah Warbelow, legal director of the Human Rights Campaign, a leading gay rights advocacy group.
“She lost in district court and has appealed to the sixth circuit to be able to press her claim. It seems that she is intent on taking her position all the way to the supreme court,” said Warbelow.
What’s the status of her legal case?
Bunning had ordered Davis to do her job while her appeal to the higher court to be exempt from issuing licenses was pending.
Davis asked the appeals court and to stay, or suspend, Bunning’s temporary order, so that she could continue to block the issuing of licenses from her office while her appeal is pending. But those higher courts refused, leaving her in contempt.
Bunning only lifted the sanction against her on Tuesday because same-sex couples had been able to obtain marriage licenses from her office in her absence, issued by deputy clerks. If she does not follow Bunning’s order, he has threatened sanctions.
Are the licenses valid?
Meanwhile, Davis’s legal team at the Christian law firm Liberty Counsel has claimed the licenses issued while the clerk was in jail are invalid, because they are marked as having been issued by the Rowan county clerk – that is, Davis – but without her authority. Others disagree.
Since Davis was jailed last Thursday, deputy clerks have issued 10 new marriage licenses. The office of Kentucky’s attorney general, Jack Conway, has evaluated those licenses and declared them valid, according to Allison Martin, a spokeswoman for Conway.
Shortly after Davis’s office at the Rowan County courthouse in Morehead opened on Wednesday at 8am, deputy clerk Brian Mason said the office would issue licenses to any eligible couples seeking them.
If Davis tries to prevent him issuing licenses after she returns, he will tell her that he must obey federal court orders to issue them, Mason said.
But are they really valid?
Scott Bauries, a law professor at the University of , said that along with Davis, any deputy clerk who refuses to issue marriage licenses could be held in contempt of court.
Katherine Franke, a professor at Columbia Law School, said the state legislature should engineer Davis’s removal as she has ignored her oath of office in favor of her religious convictions.
“The claim she is making is a clear loser – it’s a political claim, not a legal claim. She’s fighting for ‘justice’ on the level of religious law but we don’t live in a theocracy.”
William Sharp, legal director the American Civil Liberties Union of Kentucky, said that legal counsel for Rowan County had been consulted as well as the office of the state attorney general and had confirmed that the marriage licenses issued in the clerk’s brief absence are valid.
HRC’s Warbelow added: “Davis’s legal team simply saying the licenses are invalid is not legally sufficient to make them invalid.”