Embattled Rowan County Clerk Kim Davis will return to work on Monday, and her lawyers refuse to clarify whether she will allow her deputies to continue issuing marriage licenses as they have since last Friday. If she doesn’t, it could restart a new cycle of contempt and send her back to jail for again violating a federal court order.
Davis’ supporters are adamant that the state of Kentucky should be able to accommodate her religious refusal to issue marriage licenses to same-sex couples. What they are asking for, however, is not only unnecessary, but also not even viable in the way they claim it is — at least not anytime soon.
Mat Staver, head of the Liberty Counsel, the anti-LGBT legal organization that represents Davis, has made numerous claims in the press about the validity of licenses issued by her deputies and the accommodations she could be provided. For example, in a new interview with the Heritage Foundation’s Daily Signal, Staver claims that Gov. Steve Beshear (D) could simply print new marriage license forms that “take her name and title off, which costs nothing to the commonwealth.” Every aspect of this is untrue.
Kentucky law, not the governor, dictates what information should be on the marriage license. Statute 402.100 outlines that a marriage license requires “an authorization statement of the county clerk issuing the license for any person or religious society authorized to perform marriage ceremonies to unite in marriage the persons named,” as well as “the signature of the county clerk or deputy clerk issuing the license.” A separate statute clarifies that the marriage license “shall be uniform throughout this state.”
Likewise, on the marriage certificate, there must be “a signed statement by the county clerk or a deputy clerk of the county in which the marriage license was issued that the marriage certificate was recorded.”
During Davis’ contempt hearing last week, Liberty Counsel Senior Attorney Jonathan Christman told the court, “The governor can change that form, make it a state form with no personal authority, no Kim Davis name on it, available in a Rowan County Clerk’s office, and this case would be over.” U.S. District Judge David Bunning humored this claim, asking Palmer Vance, an attorney representing Beshear, “Is this something where he can just change the form by executive order?”
“No, Your Honor,” Vance replied, “because the requirements for the composition of marriage licenses is dictated by statute, and the governor cannot change the statute.”
Christman countered with a point that many Davis supporters have made: Beshear did direct Kentucky’s Department for Libraries and Archives to produce a new marriage license form after the Supreme Court’s Obergefell ruling. The change removed gender-specific language so that the form could be used for same-sex couples. Bunning asked the governor’s attorney to respond.
Vance explained, “Judge, the form was changed in response to a final decision of the United States Supreme Court that did change marriage in the sense that same-sex marriage was protected by the Fourteenth Amendment, and so the form was modified to reflect compliance of the decision of the United States Supreme Court. The United States Supreme Court disturbed no other portion of Kentucky’s marriage laws, so the governor does not have the ability to change those himself because they are in the statute.”
Only the legislature, which won’t reconvene until January, could change the statute to accommodate Davis. As governor, Beshear is empowered by the Kentucky Constitution to, “on extraordinary occasions,” convene the General Assembly for a special session before then. State Republican lawmakers seeking to support Davis and the two other county clerks who object to issuing marriage licenses have been clamoring for him to do just that for months.
But Beshear has rejected these pleas, pointing out that a special session costs Kentucky taxpayers $60,000 a day. He reiterated his position in recent weeks, explaining, “I see no need to spend hundreds of thousands of dollars of taxpayers’ money calling a special session of the General Assembly when 117 and 120 county clerks are doing their jobs.”
But the legislature doesn’t actually have to change anything to accommodate Davis. Kentucky law specifically states that anything a ministerial officer can do “may be performed by his lawful deputy.” This, combined with the law’s numerous references to deputy county clerks issuing marriage licenses and filing marriage certificates, suggests that nothing actually requires Davis to interact with a marriage license.
This question similarly came up during the contempt hearing as Bunning was considering requiring the deputies to issue licenses. Can deputies issue valid marriage licenses without Davis’ presence or approval? William Ellis Sharp, an ACLU attorney representing the same-sex couples who filed the complaint against Davis, explained to the court that it made little sense that she could actually prevent deputies from performing their duty.
“We don’t think her authority extends that far,” Sharp explained, “insofar as the office, apart from Kim Davis, exists to perform certain public functions. Kim Davis does not have to personally touch every marriage license. She employs people for the purpose of carrying out the duties of that office. To the extent Kim Davis has an erroneous instruction of her ability to block them from doing that, that, nonetheless, does not mean that they cannot perform those functions.”
Besides, it’s also not clear how exactly the legislature even could change the marriage form in a way that accommodates Davis. As Judge Bunning pointed out in his original ruling against her, her role in the marriage licensing process “is not a sign of moral or religious approval.” The purpose of a county clerk is to file the license, which requires that she merely confirm that the couple was legally qualified to marry.
What is becoming increasingly apparent, however, is that Davis seems to be trying to hold the duties of the county’s public office hostage to her personal religious whims. As Liberty Counsel’s Staver said in his interview with David Brody, “The problem is that the licenses have her name on them and/or they have her official title as the Clerk of the Court of Rowan County, so whether it’s ‘Kim Davis’ or it’s ‘The Clerk of the Court,’ it’s like saying — whether it’s the ‘President of the United States’ or ‘President Obama’ or ‘Governor So-and-so’ or a particular governor’s name, it’s the same person.
“So to issue a license under her name and authority, as Kim Davis as the Clerk of Rowan County, is something that she can’t do, because it authorizes a license for marriage that is contrary to God’s design for marriage as the union of a man and a woman.”
If “under her name and authority” means “so long as she holds the office,” that would mean that Davis isn’t just objecting to her role in issuing marriage licenses. It would mean that she wants to use the power of her position to block anyone from issuing licenses from the office so long as she is the face of it — which is until her term expires in 2018 (if she isn’t impeached by the state legislature). Altering the form wouldn’t change the county clerk’s responsibility in filing it, thus there is no simple accommodation that would satisfy Davis’ conscience objection to having her authority attached to the marriage licenses.
With the General Assembly not reconvening until January and no easily implementable legislative solution immediately apparent, Davis’ rebellion against the Constitution may well continue when she returns to work on Monday. Ria Mar, Staff Attorney with the ACLU’s LGBT & HIV Project, told ThinkProgress, “We don’t know what Kim Davis will do next, but we do know this: Lesbian and gay couples are entitled to obtain marriage licenses, just like everyone else. If Kim Davis tries to prevent eligible couples in Rowan County from receiving marriage licenses, her actions will be in direct violation of the U.S. Constitution and a federal court’s orders.”
If she continues to refuse to “violate her conscience,” as Staver has suggested she will, she may be headed back to jail for continuing to violate Bunning’s order. And she could well stay there until the statutes are revised in a way she finds agreeable or until her term ends in 2018, though she’d continue to receive a paycheck in jail.
At least one of her deputies, Brian Mason, has promised to continue issuing the licenses to qualified couples, even if it is in defiance of her orders. That is, of course, if she doesn’t fire him first.
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Kentucky
Kim Davis
Liberty Counsel
Marriage Equality: Kentucky
Steve Beshear
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