And so it came to pass that same-sex couples received marriage licenses this morning from the Rowan County clerk’s office.
A gay couple emerged from the office of a defiant county clerk with a marriage license in hand Friday morning, embracing and crying after a lengthy standoff that landed the clerk in jail for her refusal to issue the licenses because she opposed same-sex marriage.
William Smith Jr. and James Yates, a couple for nearly a decade, were the first to receive a marriage license Friday morning in Rowan County. Deputy clerk Brian Mason issued the license, congratulating the couple and shaking their hands as he smiled. After the couple paid the license fee of $35.50, James Yates rushed across the steps of the courthouse to hug his mom as both cried.
A crowd of supporters cheered outside as the couple left, with a street preacher raining down words of condemnation. Yates and Smith said they are trying to choose between two wedding dates and plan a small ceremony.
And there was much celebration in (most of) the land.
Now that the Rowan County fortress has been breached, there is no going back which makes Kim Davis’s continued self-imposed martyrdom kind of pointless. We also need to see what the other two counties whose clerks who are holding out will do. At the risk of this blog becoming all Kentucky arcana, all the time, there is another legal issue that I wish to explore, now that the deputy clerks have started issuing marriage licenses in Rowan County, and that is whether deputy clerks have the legal authority to issue licenses, an issue that seems surprisingly obscure.
Federal judge David Bunning has ordered the deputy clerks to issue licenses now that clerk Kim Davis has been placed in federal custody because of her refusal to do so. Five of the six clerks have agreed to do so, the sole holdout being Davis’s son Nathan Davis. (As some have pointed out, the clerk’s position in that county, while nominally elected, seems to have become a hereditary fiefdom, with Davis’s mother holding it for almost 40 years during which she hired Davis as a deputy for 26 years, then Davis taking over and hiring her son as a deputy. The force of nepotism seems to be strong in that county. I wonder how this case will affect the son’s chances of ‘inheriting’ the post when his mother leaves or is forced out.)
Some of the deputies told the judge that they were concerned about whether they had the legal authority to issue licenses in light of Davis continuing to refuse to give permission and the judge basically told them that that bridge had to be crossed later and the couples who got the licenses from the deputies would have to take a chance on their legality.
This got me thinking about this technical aspect. I know that the clerk’s name is on the license form and this was one reason Davis gave for not allowing her deputies to issue licenses. Since Davis had earlier forbidden her deputies from issuing licenses (including one who had no objection to doing so same-sex couples), I assumed that as long as the clerk or a deputy clerk signed the form, that made it official. But the judge’s comment suggests this is in some doubt. This puzzles me because if her deputies could not sign, then why would she need to forbid her deputies at all?
In addition, apparently there is a provision in the law that in the ‘absence’ of the clerk, the Rowan County judge could sign the form and Davis had earlier told couples to go to him and ask him to sign the form. But that judge had demurred and Bunning said that Davis’s refusal could not be interpreted as an ‘absence’ and thus the county judge would not have the legal authority to sign the form.
All these suggest that it is the clerk and only the clerk and not her deputies who can sign the form and that puzzles me since surely that would be a real nuisance practically. Suppose the clerk has a cold and stays home one day. Does that mean no one can get licenses on that day? The whole point of having a deputy position for any office is to act on behalf of the official, so the idea that in the absence of the clerk, people have to go to a judge to get the paperwork done seems strange.
This issue could be clarified by looking at the actual marriage license form but I could not find a copy online. Nor could I find the specific statute that deals with this technicality.
Of course, all this might be moot. If a deputy issues the form and a couple gets married, then there would be a presumption of legality and someone would have to later challenge it in court for the marriage to be judged invalid. But who would care enough and would have the standing to make such a challenge?
David von Drehle says that the circus surrounding Davis has obscured the fact that at the bottom, the issue is very simple.
Davis has said that she “never sought to be in this position,” with her faith telling her to ignore the law. But in fact, she did seek it—last year, when she ran for the office. Under Kentucky law, county clerks are responsible for certifying that applicants for a marriage license have met the legal requirements to wed. Are they both freely consenting and over 18? If younger, do they have permission from parents or guardians? Have they paid the licensing fee? And so on.
These requirements apply equally to same sex couples, and once they are met, the job of the county clerk is to issue a license—regardless of whether she personally believes the pair should get married.
The heat around same-sex marriage is obscuring what a simple distinction this actually is. But suppose the Rowan County Clerk was a devout Hindu. It would not be permissible to force her to eat beef at an office function, for that would violate the Hindu taboo on harming cows. But that official would not be allowed to refuse to issue a marriage license to a couple with plans to serve beef at their wedding reception, nor could a Hindu official deny a construction permit just because the building is intended to be a steakhouse.
Another public official’s faith might countenance arranged marriages of children. The First Amendment would protect her freedom to believe that such marriages are culturally appropriate. But she would not be permitted to act on that belief by issuing a marriage license to a child.
A Quaker pacifist who serves as a county clerk has a right to believe that war is an immoral violation of the Biblical commandment against killing. But that doesn’t mean that she could refuse to issue a marriage license to a soldier or a Marine.
In short, Davis’s private, personal beliefs are covered by the First Amendment. But when she steps into her official role, she is no longer a private citizen—she is now an agent of the government. And the same First Amendment that protects her private freedom of religion bars the government from having any official religious beliefs.
However much religious fundamentalists might try to obfuscate the issue, Drehle is right that Davis is in the wrong. (This is something that commenter Chiroptera has also pointed out.) In fact, judge Bunning who jailed Davis does not agree with the Supreme Court ruling on gay marriage either but feels that government officials simply have to follow the law.
Why is it so hard for some people to understand that simple truth?