At least one of the four couples that sued Davis have not yet received a marriage license. Five of Davis’ six deputy clerks — all except her son, Nathan — agreed to issue licenses to gay couples with Davis behind bars. In lifting the contempt order, Bunning asked for updates on the clerks’ compliance every two weeks.
On Wednesday, deputy clerk Mason said 10 marriage licenses had been issued since Friday, in Davis’ absence: eight Friday and two Tuesday — and seven of those went to same-sex couples.
Scott Bauries, a law professor at the University of Kentucky, said that if Davis returns to work and orders her deputies not to issue licenses, she would push them into a thorny legal conundrum of their own: They would have to choose whether to defy a federal judge or defy their boss. Bauries suspects that any deputy who chooses not to issue licenses could be held in contempt.
Davis, 49, has refused to resign her $80,000-a-year job. As an elected official, she can lose her post only if she is defeated for re-election or is impeached by the state General Assembly. Katherine Franke, a professor at Columbia Law School, said the state legislature should find the political will to boot Davis from office since she has ignored her oath of office in favor of her religious conviction.
“The claim she’s making is a clear loser. It’s a political claim, it’s not a legal claim,” Franke said. “That’s why she lost on the district level and the circuit level and she will continue to lose. She’s fighting for justice on the level of religious law. But we don’t live in a theocracy.”
It is unlikely the Kentucky state legislature would impeach Davis. The Republican president of the state Senate spoke at a rally at the state Capitol and filed an amicus brief asking Bunning not to hold Davis in contempt of court for defying his order. Several lawmakers have already filed legislation for the 2016 session that would exempt county clerks from having to issue marriage licenses.