Kim Davis freed from jail in Kentucky: Will she be back behind bars soon?

It is possible that Kim Davis's freedom won't last long. The release order requires the clerk to refrain from interfering with the issuing of marriage licenses to same-sex couples. Her lawyers say she is not prepared to back down.

Jonathan Palmer/The Courier-Journal/AP
Rowan County clerk Kim Davis (c.) hugs her attorney, Matt Staver, with Republican presidential candidate Mike Huckabee (center l.) next to her after being released from the Carter County Detention Center in Grayson, Ky., on Tuesday. Davis, the Kentucky county clerk who was jailed for refusing to issue marriage licenses to gay couples, was released after five days behind bars.

A federal judge on Tuesday ordered the release from jail of Kim Davis, the Kentucky county clerk jailed for contempt last week after she refused to issue marriage licenses to same-sex couples.

US District Court Judge David Bunning said he’s satisfied that deputies in the Rowan County office are now complying with orders to grant such licenses. Five of the six deputies had said they would do so, though some expressed reluctance due to religious objections.

Judge Bunning’s release order requires Ms. Davis to refrain from interfering with that ongoing business. Lawyers for her deputies must report on their marriage license activity to Bunning every 14 days.

It’s possible that Davis’s freedom won’t last long. According to a report from CNN correspondent Martin Savidge, her lawyers say she has not changed her mind, and that as long as her name appears on the licenses, she will stop them from being issued.

It is her view that a deputy’s signature, or even a generic “Rowan County Clerk” stamp on the licenses, means that in essence they are being issued under her ostensible authority.

“Which means if she goes back on the job as expected, she will bring the process to a halt,” said Savidge in his report.

As Rowan County clerk, Davis’s name is on the marriage licenses as a matter of routine. Her attorneys say that Kentucky’s Religious Freedom Restoration Act (RFRA) requires the state to accommodate her request that her name be removed from the documents.

That Kentucky statute, passed in 2013, prohibits the state government from “substantially” placing burdens on an individual’s free exercise of religion, unless the government has a compelling interest in doing so and uses the least restrictive means available to pursue its interest.

It’s possible that Davis and her attorneys are correct on this point, and that the RFRA might indeed require the state to offer her the option of simply removing any reference to herself or her office from the licenses, according to a lengthy analysis by UCLA law professor Eugene Volokh at his eponymous Washington Post blog.

But at this point, it is also possible that the dispute has passed from the realm of dry legal statute and into the world of high politics, with all the posturing and heated discussion that entails.

GOP presidential hopeful Mike Huckabee appeared with Davis following her release and said that he, too, would be willing to go to prison to support her belief. And one of her attorneys, Mat Staver, of the Christian-oriented firm Liberty Counsel, said after her release that the licenses issued during her incarceration were invalid.

Asked whether Davis would comply with the judge’s order to refrain from interfering with her deputies’ work, Mr. Staver said, “You’ll find out in the near future."

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