The legal status of Kentucky’s marriage licenses


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?

Comments

  1. says

    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.

    Well, it really doesn’t matter. As long as they are recorded as married, they are married. Is there any realistic scenario in which the state challenges its own marriage license? Basically, zero likelihood of that happening. So what stands, stands.

    I was thinking about this the other day and realized that the judge could have bypassed the whole thing by simply directing the clerks to not issue a marriage license at all, but to simply take the application and mark the applicants down as now married. Presto. Remember – the license is just permission to have a ceremony that causes a database update: just do the database update and if people want to have a ceremony, by all means do so.

  2. says

    Suppose the clerk has a cold and stays home one day. Does that mean no one can get licenses on that day?

    I would imagine that has had to have happened in the past. Could it be (and this goes, too, to what Marcus said @1) that the clerk could challenge any licenses signed by a deputy? Could it be that deputies normally can and do sign licenses? As you say, Mano, “The whole point of having a deputy position for any office is to act on behalf of the official.” Is this exposing an odd case where a deputy’s actions are not on behalf of the official since the official does not personally agree with the law?

  3. says

    Another way of thinking about it:
    if the clerk had been hit by a car and was hospitalized, nobody would have thought twice, or even once, about there being any problem with having the deputies issue the marriage licenses.

  4. jd142 says

    I can think of scenarios where it would be an issue, and we’ve seen similar fact patterns play out in the past few years when states had different laws on marriage equality.

    Bob marries Fred with a deputy signed license. A year later, Bob uses a surrogate to father a daughter who is his genetic offspring. Two years later, Bob and Fred divorce. Bob wants alimony and child support from Fred for the daughter they were raising. Fred’s lawyer says that since the deputy signed the license, the marriage was not valid, so Fred owes nothing.

    Or instead of divorce, Fred dies. Fred’s parents sue for grandparent visitation, but Bob doesn’t like them and doesn’t want them to have visitation. Bob’s lawyer says that the licenses are invalid so Fred’s parents have no rights.

    The lawyer has to do her best to defend her client, and the validity of the license would certainly be something to attack. Depending on the state, they may not have been together long enough to qualify for common law marriage.

  5. sigurd jorsalfar says

    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.

    I think what’s been going on is that the deputies prepare the licenses and the clerk signs them.

    It seems to me that deputies cannot sign them:

    Kentucky Revised Statutes:
    402.240 County judge/executive to issue license in absence of clerk.
    In the absence of the county clerk, or during a vacancy in the office, the county
    judge/executive may issue the license and, in so doing, he shall perform the duties and
    incur all the responsibilities of the clerk. The county judge/executive shall return a
    memorandum thereof to the clerk, and the memorandum shall be recorded as if the
    license had been issued by the clerk.

    Another problem is that after the marriage is solemnized, the completed license has to be returned to the county clerk in the county where it was issued. So if Davis gets out of jail tomorrow what’s to stop her from failing to register gay marriage licenses issued by her deputies?

  6. Mano Singham says

    The basic problem seems to be that the statute was written giving a lot of weight to the signature of the clerk on the assumption that it would be an automatic thing, that the clerk would merely certify that the legal conditions were met. I think no one foresaw the possibility of a clerk going rogue and deciding not to issue licenses because of personal beliefs.

  7. Erp says

    I hunted down an image of the current Kentucky license form (and in fact one issued on Friday), the County Clerk’s name and county should appear on the form and either the County Clerk or a deputy signs the form. The County Clerk need not sign the form but she does have to authorize the deputies to act in her place and she does have to allow her name to appear.
    In this case the clerks seem to have replaced her name with the County Name and then signed as they normally do. The question might be whether the state accepts the returned paperwork after the actual ceremony is done.

    In the absence of the County Clerk the County executive/judge can act in place of the clerk in issuing licenses (or presumably authorizing deputies).

  8. Mano Singham says

    Thanks Erp. Some news reports I read said something vaguely similar but were not as explicit.

    I was wondering though how the clerk ‘authorizes’ the deputy. Does the clerk have to sign the authorization, in which case the clerk might as well sign the form. Or is the deputy certifying that they have been authorized by the clerk and thus replacing the clerk’s name with the county ‘solves’ that problem?

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