The Judge In The Kentucky Clerk Case Is Making The Situation Worse

In Kentucky, U.S. District Court Judge David Bunning has issued — or not issued — a series of orders and statements in the Kim Davis case that have left major questions about what he means.

Edgar Orea, right, preaches to a group of marriage equality supporters that have gathered outside the Carl D. Perkins Federal Building in Ashland, Ky., Thursday, Sept. 3, 2015.

Timothy D. Easley / AP

WASHINGTON — The situation is fraught. An elected official is refusing to follow the Supreme Court's marriage ruling, as well as a subsequent court order that her religious convictions do not exempt her from the ruling.

U.S. District Court Judge David Bunning, however, isn't making the situation in Kentucky any easier, issuing a series of vague or incomplete rulings over the past month that have added an element of confusion — even, at times, mystery — to the already precarious situation.

After the Supreme Court ruled in favor of nationwide marriage equality, Rowan County Clerk Kim Davis put into place her "no marriage licenses" policy — a response to her opposition to her name appearing on same-sex couples' marriage licenses. Four couples sued, and Davis was asked to defend the policy.

Judge Bunning — former Sen. Jim Bunning's son — was assigned to hear the case.

Fourteen years ago, when the Senate considered Bunning's nomination to the bench by President George W. Bush, the American Bar Association rated him "Not Qualified" for his appointment in 2001.

"President Bush has submitted to the Senate the names of 64 nominees for judicial appointment, and our Committee has found only this one candidate to be 'Not Qualified,'" the lawyer who ran the ABA investigation of Bunning, David C. Weiner, stated at the time. Neither his integrity nor his judicial temperament were questioned. "Rather, our conclusion that the nominee should be rated 'Not Qualified' is based on several, serious concerns relating to his competence."

Nonetheless, the Senate confirmed Bunning in February 2002. Now, he's found himself in the middle of the biggest story in the country — and, putting aside ideology on either side, his legal rulings over the past month have created substantial confusion in an already politically complex case.

On Friday morning, Davis woke up in jail and couples began getting marriage licenses in Rowan County for the first time since the Supreme Court ruled that Kentucky's ban on same-sex couples' marriages is unconstitutional. While both of those decisions might ultimately be correct, there is, as of now, no written explanation for why either of those things is happening — and at least one of them rested on shaky legal ground that could come back to hurt the couples marrying on Friday, a fact acknowledged by Bunning on Thursday.

Although five of Davis's deputies have stated that they would issue marriage licenses, at least two — through their lawyers — questioned whether they would have the authority to do so.

"Whether a license issued by the Rowan County Clerk's Office is valid or not," Bunning said in court, "I am not saying it is or it isn't."

Rowan County Clerk Kim Davis, right, talks with David Moore following her office's refusal to issue marriage licenses at the Rowan County Courthouse in Morehead, Ky., Tuesday, Sept. 1, 2015.

Timothy D. Easley / AP

How we got to this point is complex, even to lawyers who have closely followed the marriage cases, and the orders from Bunning have only added to the confusion.

On Aug. 12, Bunning issued an order that Davis stop the policy, specifically ordering that "Defendant Kim Davis, in her official capacity as Rowan County Clerk, is hereby preliminarily enjoined from applying her 'no marriage licenses' policy to future marriage license requests submitted by Plaintiffs."

The confusion started five days later. Davis requested that the ruling be put on hold — or stayed — while she appealed it. Bunning denied her request.

He added, however, that "this Order denying Kim Davis' Motion to Stay be, and is, hereby TEMPORARILY STAYED pending