ROWAN COUNTY, Kentucky (CNN)–
A Kentucky clerk who was jailed for refusing to issue marriage licenses to same-sex couples was freed Tuesday, but the judge who issued the order also attached a caveat she may not be willing to accept.
U.S. District Judge David Bunning ordered that Rowan County Clerk Kim Davis be released from jail Tuesday — five days after he sent her there — saying he was satisfied that her deputies fulfilled their obligations to give marriage licenses to same-sex couples in her absence.
But Bunning’s new order says Davis, once free, still cannot interfere with her deputies issuing marriage licenses to all legally eligible couples.
It wasn’t immediately clear how Davis would react to the order, but she has said she will not authorize her office to issue marriage licenses to same-sex couples if her name remains on the certificate. Bunning’s order makes no mention of revising the licenses to accommodate Davis, who says issuing a license with her name on it would violate her Christian convictions against same-sex marriage.
Tuesday’s order came as hundreds of Davis’ supporters rallied outside the jail, and just before two Republican presidential hopefuls, Mike Huckabee and Sen. Ted Cruz of Texas, were to meet with Davis there as a show of support.
One of Davis’ attorneys said Bunning hasn’t resolved anything.
“We’ve asked for a simple solution — get her name and authority off the certificate. The judge could order that,” attorney Mat Staver said shortly before Davis was released.
Asked if she would refuse marriage licenses to same-sex couples after leaving jail, Staver said: “I have to talk to her. … But I do know for very clear she will not compromise her conscience.”
Huckabee arrived just after Bunning’s order was announced; it appeared the former Arkansas governor still would meet with Davis inside the facility.
Bunning ordered Davis to jail on Thursday after finding her in contempt of court for refusing to issue marriage licenses to gay couples in Rowan County following June’s U.S. Supreme Court ruling legalizing same-sex marriage.
Davis’ attorneys: Kentucky religious freedom law supports her
After Bunning’s order, five of her deputies agreed to issue marriage licenses in her absence. The Rowan County clerk’s office began doing so Friday.
Davis’ legal team filed appeals to the 6th U.S. Circuit Court of Appeals.
“If (Davis’ deputies) can issue licenses under someone else’s authority … Kim Davis would not stand in the way of that,” one of her attorneys, Roger Gannam, told CNN’s “New Day” on Tuesday.
Davis’ legal team on Monday asked the appeals court for an injunction that would prompt Kentucky Gov. Steve Beshear to remove her name from the licenses — something her attorneys say Beshear can do through an executive order.
Some of Davis’ opponents say that she could resign if she feels she can’t issue licenses to same-sex couples.
But Davis should not have to resign or be jailed, Gannam said, because “accommodation of religious conscience is the law in Kentucky, including for elected officials.”
Gannam cited Kentucky’s Religious Freedom Restoration Act. The 2013 law prohibits the state government from substantially burdening a person’s freedom of religion unless the government both proves it has a compelling interest in doing so and has used the least restrictive means to do it.
“It’s the duty of the Kentucky government to accommodate that, and they very easily could do so,” Gannam said. “Gov. Beshear is the one who should do his job or resign.”
Governor: No special session
Beshear’s office said Monday he wouldn’t respond to news of the appeals, saying the case was a “matter between her and the courts.”
The state Legislature also could pass a law removing clerks’ names from the licenses, but it won’t be in session until January.
Beshear said the Legislature can do as it wishes, but he won’t call lawmakers for a special session to deal with the issue, adding that doing so would cost “hundreds of thousands of dollars of taxpayers’ money.”
ACLU: ‘Goal has been achieved’
After Bunning ordered Davis’ release on Tuesday, a lawyer who represented same-sex couples who sought marriage licenses in Rowan County said that the plaintiffs’ goal had “been achieved.”
“This case was brought to ensure that all residents of Rowan County, gay and straight, could obtain marriage licenses. That goal has been achieved,” said William Sharp, legal director of the American Civil Liberties Union of Kentucky. “The Kentucky Attorney General and counsel for Rowan County have said the marriage licenses are valid. We are relying on those representations, and our clients look forward to proceeding with their plans to marry.”