I know Kim Davis was released from jail earlier today, but there are some real legal issues that need to be sorted out.
Are the marriage licenses currently being issued by her deputy clerks valid?
Do the licenses have to include Davis’ name on them?
Should Kim Davis be in jail right now?
Marty Lederman, a professor at the Georgetown University Law Center, has a really thorough writeup attempting to sort through those questions as they pertain to Kentucky law. Not every question has a straightforward answer, though, making things even more confusing. (Keep in mind he posted this before she was released.)
This may be the kicker:
If Deputy Clerk [Brian] Mason can issue valid marriage licenses, with or without Davis’s name attached, notwithstanding Davis’s directive to the contrary, then there’s no need for a federal judge to hold Davis in contempt, because the persons who are to perform the plaintiffs’ marriage ceremonies will receive valid licenses, anyway, from Mason…
On the other hand, if, under Kentucky law, Deputy Clerk Mason must follow Davis’s orders, and therefore he cannot issue valid marriage licenses, then it would be necessary and appropriate for the judge to hold Davis in contempt, in order to coerce her to comply with federal law (which is, of course, also Kentucky law that she has a state-law duty to implement). But in that case, the licenses Mason is now issuing would not be valid.
That is to say: One way or the other, what’s currently taking place don’t seem kosher. Either the licenses now being issued are not valid, or there’s no need (or justification) for holding Davis in contempt.
I would also add: Gay and lesbian couples will be able to get married in Rowan County either way. Kim Davis won’t be able to stop that no matter how much faux-courage she’s projecting.
(via Religion Clause. Thanks to Lex for the link)