This is not exactly unexpected:
Rowan County Clerk Kim Davis walked out of a Kentucky detention center to massive applause Tuesday after spending five days behind bars for defying a federal order that she issue marriage licenses to same-sex couples. But her attorney said that Davis would continue to abide by her conscience, which cannot condone same-sex nuptials, and that all licenses issued since her incarceration were not valid.
The defiant stand seems likely to land Davis right back in jail, from where she emerged Tuesday afternoon alongside her attorney, Mat Staver, and former Arkansas Gov. Mike Huckabee, who was hosting a rally in her honor. Huckabee, a former Baptist pastor, told reporters outside the detention center he’d be willing to go to jail in her place should a federal judge find she’s violated the conditions of her release.
Bunning said in his order Tuesday that Davis “shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.” But Staver suggested such interference was likely.
“She cannot allow a license authorizing same-sex marriage to go under her authority or name,” Staver said in an interview with NBC News’ Gabe Gutierrez, ahead of Davis’ release. “That’s been her position from the beginning and that will be her position, I assume, on any subsequent occasion. She’s asking for a simple fix, a simple accommodation.”
“We’re back to square one,” he added. “She’s been released. But there has been no resolution.”
Some questions for the office pool: Will it take days before Kim Davis lands herself in jail, or mere hours? How, exactly, can she interfere? Hide all the license forms in her safe? Cut the printer cables? Sabotage the network? Physically preclude her deputies from doing their jobs? Fire them for doing their jobs? No, really, how is this going to go?
We must also remember that Mat Staver is running in circles, with Liberty Counsel explicitly noting that the removal of Ms. Davis’ name from the license being issued by another person would not burden her rights, Mr. Staver asserting the same potential accommodation three days later, and then several days after that rejecting that very accommodation.
What, then, is this “simple accomodation” Mr. Staver asks on behalf of his client, Kim Davis? There are two apparent candidates. Ms. Davis, apparently, would have Gov. Beshear order a special session of the legislature in order to rewrite marriage license laws; or else Ms. Davis is asking nothing more than to extend her religious freedom to prevent others from obeying the law. Generally speaking, Mr. Staver’s assertion and demand are untenable; Bill Estep reported for the Lexington Herald-Leader:
Marriage licenses obtained by three couples in Rowan County were altered so they did not include the name of county Clerk Kim Davis, who had been jailed for refusing to issue licenses because of her opposition to same-sex marriage.
However, Gov. Steve Beshear and others said the licenses for the three couples were valid even without Davis’ name on them.
Under state law, deputy clerks may issue licenses and perform other duties just as elected clerks can, said Allison Connelly, director of the University of Kentucky’s Legal Clinic. “I think that that’s really immaterial,” Connelly said of Davis’ name not appearing on the licenses.
Rowan County Attorney Cecil Watkins dismissed that argument, saying deputy clerks could issue valid marriage licenses without the clerk’s approval.
On Tuesday, several other officials agreed that the licenses issued without Davis’ name are valid.
Beshear said there was no question the licenses were valid. He noted the state already is recognizing same-sex marriages for tax purposes. “These folks got a license, they got married, and that’s that,” Beshear said.
Rowan County Judge-Executive Walter “Doc” Blevins said he had checked with the Kentucky Association of Counties, which thought the marriage licenses without Davis’ name were valid.
No, really, when the choices are sinister or stupid, we must bear in mind that sinister pretty much requires some manner of ignorance, such that functionally the one is subsumed within the other.
Remember, though, this is what Mr. Staver does. He finds people to pretend victimhood in order to advance novel legal propositions. Which is in its own right ironic given how much conservatives complain about slick trial lawyers. But there is also a perverse squeaky-wheel notion in play, as if one might make enough noise to point to one’s own racket as somehow significant. It might have worked once upon a time for phone-tree complaints to the FCC, but in this issue especially we might recognize the end of Liberty Counsel’s supremacist rope. Remember that dismal run at the ballot box. Zero for thirty-three, by one count, or one for thirty-four if we account for the one success in fending off a heterosupremacist marriage exclusion undone the next year. An essential blank slate for marriage equality. And in the end, all that noise didn’t matter because the case wasn’t there. Read the Obergefell dissents, which seethe as they do because there is nothing else to do. And Mr. Staver has, we might recall, been on something of a losing streak. Quite honestly, it’s hard to imagine what he could tell his client, other than explaining to her why she cannot win, that isn’t a lie.
Well, okay, he could give Ms. Davis fashion advice. But come on.
This could be interesting. Proverbially so. It would, however, probably be best if Kim Davis just skipped the sequel.
Image note: Rowan County Clerk Kim Davis is escorted from jail to a waiting crowd by Liberty Counsel founder Mat Staver (right) and other lawyers from the Falwell Ministry-affiliated legal firm, in Grayson, Kentucky, Tuesday, 8 September 2015, after U.S. District Judge David Bunning lifted his contempt order. Ms. Davis’ husband, Joe Davis, follows at rear. (Image via CNN)
Margolin, Emma. “Kentucky clerk Kim Davis released from jail”. msnbc. 8 September 2015.
Estep, Bill. “Marriage licenses issued since Friday in Rowan County were altered to remove Kim Davis’ name”. Lexington Herald-Leader. 8 September 2015.