Even if the Kentucky legislature rammed through a bill to make all of the “corrections” consistent with the SCOTUS opinion, nothing would change here.
Kim Davis never argued that the law was invalid, or deficient, or otherwise lacking in wording or authority. She argued that SCOTUS was wrong and that she would not violate her moral position by doing something amoral. She effectively ignored any other course of action that might have bought her some time, skipped right on to the main event, and fell on the sword.
I was likewise arguing yesterday that there’s a lot of KY laws that were being ‘de facto’ re-written on the fly, and that’s also wrong (of course), but Davis seems to have one-upped all of us by just saying “no”. She drew the line and a judge is now trying to sweating her out of that position.
In all honesty, I think her only course of action now (other than staying in jail) is to resign her office, since there’s no longer a battle for her to fight here - her office has capitulated without her. This would also allow her to correctly claim that she never caved on the issue.
Yes, she should have focused on the law. Her argument implies that she believes she is performing or solemnizing a marriage, when in fact she is simply issuing a license for someone else to perform that function. The argument would be a lot more relevant if she were a justice of the peace who was being coerced into solemnizing the ceremony.