Speaking with a Kentucky source, I learned the deputy clerks were given 30 minutes to get a lawyer and get back into court. Five of six deputy clerks are willing to issue same-sex marriage licenses, which Judge David Bunning reportedly said would get Kim Davis out of jail. (The underlying contempt case would be mooted … at least until the next same-sex couple showed up in her office).
But Kentucky law says that when the clerk is absent, the county executive is the one who has the authority to issue licenses. It is not clear that a federal judge can give the deputy clerks the authority to use Kim Davis’ seal of office to issue the license.
I think the courts realize jailing Kim Davis is a loser for gay marriage advocates. It will likely elect the Republican governor (and the next governor could, like Bobby Jindal did, create conscientious exemptions under the state RFRA authority).
The Republican nominee Matt Bevin has made it clear he would free Kim Davis. “This could even flip the House from Democrat to Republican,” my source said, although that would have to wait until fall 2016.
Stay tuned; the drama continues. I smell victory for liberty, for common sense, and for generosity.
Maggie Gallagher is a senior fellow at American Principles in Action.