...But her strongest legal point is that the paperwork confusion caused by Obergefell has caused her to have to follow rules that don’t currently exist. The marriage form, for example, asks licensees for information about the “female” partner.
To be sure, the Supreme Court has in the past ruled that government officials have to put duty above personal beliefs and faith. In a 2002 law review article, Justice Antonin Scalia, writing about judges faced with having to decide an execution, says that a judge “has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own....
...The applicants paid a $35.50 fee, and got a receipt But the licenses did not include the clerk’s signature. For their part, Davis' s attorneys said they’re not "worth the paper they are written on.”
Supporters say Davis has the right to fully abide by her faith, even at the office, especially as it’s up to the legislature, or a state executive, to either change the marriage license forms or set up a different system, such as online applications.
Gov. Steve Beshear has resisted calling a special session to do so, citing his attorney general’s view that the 197 county clerks in Kentucky current issuing marriage licenses to same-sex couples are doing so correctly. But that means unless Davis decides to rethink her defiance, she could remain in jail until the legislature does rewrite the law so that her name is not attached to certificate paid for by a same-sex couple. The legislature doesn’t meet again until January.