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 court filing.
In a separate filing Friday, attorneys for the gay couples who sued Davis appear to agree.
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 to comply with a U.S. Supreme Court decision that effectively legalized gay marriage nationwide. Davis, an Apostolic Christian, believes same-sex marriage is a sin and cited "God's authority" in refusing to obey the ruling.
U.S. District Judge David Bunning released Davis from jail on the condition that she not interfere with her employees as they issue marriage licenses. When she returned to work, Davis altered the marriage forms by removing her name, making deputy clerk Brian Mason initial the form instead of sign it, and then requiring the form to be notarized.
"A notary has nothing to do with it," Mason's attorney, Richard Hughes, told The Associated Press on Friday after filing a status report with the judge. Hughes said it was "really bizarre" that Davis would alter the forms.
"Unless she's got a really good reason, and I'll certainly be patient and wait to hear it, the only inference I personally can draw from it is she is trying to circumvent the court's order," he said.
Bunning appointed attorneys for each of Davis' deputy clerks and asked them to file status reports every two weeks. The reports are not due until Tuesday, but Hughes filed his on Friday saying Davis' "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."
"We'll see what Judge Bunning is going to do with it," Hughes said.
Also Friday, the attorneys for the American Civil Liberties Union said in a court filing that the changes on the form 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," changes that "do not comply" with the court's order to not interfere with her employees who issue the licenses.
"These alterations call into question the validity of the marriage licenses issued," 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.
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."
"(Mason) says he has a good relationship with her," Hughes said. "It's been hard on all of them."