Kentucky Marriage Law in a Bind

by Rodney Pelletier  •  •  September 17, 2015   

The Kentucky clerk who refused to issue marriage licenses to same-sex couples partially wins her fight in court

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LOUISVILLE, September 17, 2015 ( - The Sixth U.S. Circuit Court of Appeal has once again denied a Kentucky clerk's petition not to issue gay marriage licenses.

Rowan county clerk Kim Davis, who spent five days in jail last week for defying a court order to issue marriage licenses to gay couples, was released on condition that she not interfere with her office's issuing of licenses. After her release, she petitioned the court for her office to be exempted from issuing licenses to same-sex couples, but the court rejected her petition.

It wasn't a total loss, however, as the court also denied the Kentucky governor's request to dismiss the case altogether. The Sixth Circuit is not dismissing the case, but allowing Davis to appeal the ruling to the U.S. Supreme Court.

Davis had been placed in jail September 3 by federal judge David Bunning for refusing to give out marriage licenses to two same-sex couples and two heterosexual couples. The ACLU lawyers on behalf of the plaintiffs stated they just wanted her fined but the judge refused, saying people would step up to pay the fines for her.

Five days later, in a surprise turn of events, the judge ordered her released, telling her she could not interfere with deputy clerks handing out licenses.

On returning to work this week she declared:

To affix my name or authoritative title on a certificate that authorizes marriage that conflicts with God's definition of marriage as a union between one man and one woman, violates my deeply held religious convictions and conscience. For me, this would be an act of disobedience to my God.

The office has removed her name from all marriage certificates, and Davis has complied with Bunning's order and hasn't been interfering with deputy clerks in her office issuing marriage licenses to same-sex couples. She has refused to sign them, however.

I want the whole world to know, be no mistake about it, that my deputy clerks do not have my authorization or my authority to issue any license whatsoever. However, any unauthorized license that they issue will not have my name, my title or my authority on it. Instead, the licenses will state that they are issued pursuant to a federal court order.

Kentucky's governor and attorney general believe the licenses are valid, with Gov. Beshear saying on Monday that the licenses issued "are going to be recognized as valid in the Commonwealth." Davis maintains they aren't valid, since they don't bear her authorization, and the ACLU lawyers who sued on behalf of the gay couples have expressed concern that the licenses might be invalid. But the governor noted that Judge Bunning hasn't raised any objections to the licenses as issued, and the couples who have asked for them are satisfied.

While Davis was in jail, her deputies issued licenses with her signature on them from a stamp. At least seven were granted to same-sex couples. Deputy Clerk Brian Mason says he'll continue to issue licenses, saying it's better to disobey his boss than a federal judge.

But the future of Davis' job remains unclear. She can't be fired because she's an elected official, and she can't be impeached because of how Kentucky's statutes are currently written. In a speech on Monday, she offered the solution that the clerk be completely off the marriage license and issued under another authority, like the Commonwealth of Kentucky or the governor himself. She added that a marriage license could be treated like a vehicle registration or a lien, removing a possible conflict with the issuer's conscience since he would not be the authorizer of the license.

She further mentioned that the president of the Kentucky State Senate himself told the courts the state marriage laws are "shredded." They forbid the issuance of a marriage license by anyone other than a person expressly authorized by the statutes. She continued, "Even if a court strikes down a law, it can't create a new statute. That must be done by the legislature. To issue a license to a person that is not authorized to receive it, under the statute, is a direct violation of the law. This, too, needs to be addressed by the legislature."

The president of the state senate called for a special session of the state legislature in order to change the law, but Beshear rejected it, saying:

The legislature has placed the authority to issue marriage licenses squarely on county clerks by statute, and I have no legal authority to relieve her of her statutory duty by executive order or to remove her from office.

The General Assembly will convene in four months and can make any statutory changes it deems necessary at that time. I see no need to spend hundreds of thousands of dollars of taxpayers' money calling a special session of the General Assembly when 117 of 120 county clerks are doing their jobs.

Davis has urged the governor, the state legislature and the court to intervene in the situation, maintaining they have the authority to change the statutes.

When Judge Bunning's initial decision was handed down, marriage equality supporters chanted "Love has won." Yet that same community threatened Davis and her husband. She told Fox News, "They told my husband they were going to burn us down while we slept in our home. ... He's been told that he would be beaten up and tied up and made to watch them rape me. I have been told that gays should kill me."

Despite the threats from judges and liberals alike she is determined to keep going.

"I don't leave my conscience and my Christian soul out in my vehicle and come in here and pretend to be something I'm not. It's easy to talk the talk, but can you walk the walk?"


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