Lawyer: Clerk may have interfered with order on gay marriage
OWENSBORO, Ky. (AP) -- A Kentucky county clerk may have again defied a federal judge's order regarding gay-marriage licenses by altering license forms to remove her name, an attorney who represents one of the clerk's employees told the judge Friday.
In a separate filing, attorneys for the gay couples who sued Davis said the alterations "do not comply" with the court's order to not interfere with her employees who issue the licenses.
Rowan County Clerk Kim Davis spent five days in jail for refusing to obey a federal judge's ruling that she issue marriage licenses to same-sex couples. Davis, an Apostolic Christian, believes same-sex marriage is a sin and cited "God's authority" in refusing to issue the licenses.
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While Davis was in jail, deputy clerk Brian Mason issued the licenses to same-sex couples. U.S. District Judge David Bunning then released Davis from jail, but ordered her not to interfere with Mason or any other employee who issued the licenses, or else risk returning to jail. Bunning appointed attorneys for each of Davis' employees and asked them to file status reports with the court every two weeks.
On Friday, Mason's attorney told the judge that when Davis returned to work Monday she "confiscated all the original forms" and replaced them with forms that delete her name, the name of the county and all references to the deputy clerks. The new form has Mason's name and a place for him to write his initials but not his signature.
"It also appears to this counsel those changes were made in some attempt to circumvent the court's orders and may have raised to the level of interference against the court's orders," attorney Richard Hughes wrote. "Mr. Mason is concerned because he is in a difficult position that he continues to issue the licenses per the court's order ... which had some remote questionable validity, but now with these changes may in fact have some substantial questions about validity."
Also Friday, attorneys for the gay couples that sued Davis noted that the altered forms require Mason to issue the licenses "in his capacity as a `notary public' rather than a deputy clerk of the Rowan County Clerk's Office.'"
"These alterations call into question the validity of the marriage licenses issued, create an unconstitutional two tier system of marriage licenses issued in Kentucky, and do not comply with this Court's September 3 Order prohibiting Davis from interfering with the issuance of marriage licenses," the attorneys wrote in a footnote to a motion asking the judge to certify the case as a class action lawsuit. "Plaintiffs are exploring legal options to address these material alterations."
State law requires marriage licenses to be issued under the authority of the county clerk. Someone else, a minister or other officiant, then performs the ceremony and signs the license. The clerk then files the license with county records.
Davis has said that any license issued - with or without her name - is not valid unless she authorizes it. However, when she was released from jail she changed the marriage license forms to say they were being issued under the authority of the federal court. Davis' attorney said this new form, if OK with the judge, would solve the problem because gay couples would have a marriage license and Davis would have a clear conscience.
But lawyers with the American Civil Liberties Union, which represents the gay couples that sued Davis, said they are concerned the new forms might not meet the requirements of Kentucky state law. Hughes echoed those concerns in Friday's court filing.
"Mr. Mason's concern is he does not want to be the party that is issuing invalid marriage licenses and he is trying to follow the court's mandate as well as his superior ordering him to issue only these changed forms," Hughes said.
Kentucky's Democratic governor and attorney general have both said the licenses are valid and will be recognized by the state. Bunning, the federal judge, has said he does not know if the licenses are valid and it was up to the gay couples to take that chance.
Mason is the only employee in Davis' office who has said he does not object to issuing marriage licenses to same-sex couples. Hughes said he agreed with his fellow deputy clerks to issue the licenses to "ease the stress of the situation." But Hughes noted the other clerks would issue the licenses if Mason were absent.
Mason has calmly and cheerfully issued marriage licenses in Rowan County, often amid a scrum of TV cameras and recorders documenting his every move. He has declined interview requests, and it is not clear what relationship he has with Davis. During her federal testimony, Davis described Mason as a "very loyal, very dedicated, very good employee."
This story has been edited to clarify that attorney is saying Davis may have interfered with the judge's order.