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by Zack Ford Sep 11, 2015 8:00am

Embattled Rowan County Clerk Kim Davis will return to work on Monday, and her lawyers refuse to clarify whether she will allow her deputies to continue issuing marriage licenses as they have since last Friday. If she doesn’t, it could restart a new cycle of contempt and send her back to jail for again violating a federal court order.

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Mat Staver, head of the Liberty Counsel, the anti-LGBT legal organization that represents Davis, has made numerous claims in the press about the validity of licenses issued by her deputies and the accommodations she could be provided. For example, in a new interview with the Heritage Foundation’s Daily Signal, Staver claims that Gov. Steve Beshear (D) could simply print new marriage license forms that “take her name and title off, which costs nothing to the commonwealth.” Every aspect of this is untrue.

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But the legislature doesn’t actually have to change anything to accommodate Davis. Kentucky law specifically states that anything a ministerial officer can do “may be performed by his lawful deputy.” This, combined with the law’s numerous references to deputy county clerks issuing marriage licenses and filing marriage certificates, suggests that nothing actually requires Davis to interact with a marriage license.

This question similarly came up during the contempt hearing as {U.S. District Judge David Bunning} was considering requiring the deputies to issue licenses. Can deputies issue valid marriage licenses without Davis’ presence or approval? William Ellis Sharp, an ACLU attorney representing the same-sex couples who filed the complaint against Davis, explained to the court that it made little sense that she could actually prevent deputies from performing their duty. ... “We don’t think her authority extends that far,” Sharp explained, “insofar as the office, apart from Kim Davis, exists to perform certain public functions. Kim Davis does not have to personally touch every marriage license. She employs people for the purpose of carrying out the duties of that office. To the extent Kim Davis has an erroneous instruction of her ability to block them from doing that, that, nonetheless, does not mean that they cannot perform those functions.”