Wednesday, December 23, 2015

Merry Christmas, Kim Davis! [UPDATED]

Marty Lederman

Newly elected Kentucky Governor Matthew Bevin yesterday issued an executive order directing the Kentucky Department of Libraries and Archives to create and promulgate a new marriage license form, to be used by County Clerk's Offices throughout the Commonwealth.  The new form would not itself make any reference to the Clerk's office, or to the Clerk, as such.  It would, however, require the "issuing official" to record his or her name and title, and the county in which the license was issued.

Which official would sign the license in a particular county?  Ordinarily, the County Clerk, because a provision of Kentucky law (KRS § 402.080) states that a license “may be issued by any county clerk,” and another provision (KRS § 402.100) provides that “[e]ach county clerk shall use the form prescribed by the Department for Libraries and Archives when issuing a marriage license.”  As I explained here, however, the latter provision also indicates that the license may, alternatively, be issued by a deputy clerk:  It specifically states that the license must contain “[t]he date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license.”  Moreover, KRS § 61.035 states that “[a]ny duty enjoined by law . . . upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.”

Therefore, in a county such as Rowan County, where the Clerk--Kim Davis--refuses to issue such a license, a Deputy Clerk can do so using the new form.  (The County must provide at least one clerk willing to sign it--it'd be a violation of federal constitutional law to compel couples to travel to another county to obtain  a license.)  In Rowan County, that willing Deputy Clerk has been Brian Mason.  If the Department of Libraries and Archives complies with the Governor's new Executive Order, presumably Mason will sign the new form.

Perhaps this accommodation will satisfy everyone concerned, even though (ironically?) Mason will now include on the marriage form two pieces of information that Kim Davis has insisted he not include on the licenses he has been issuing since September 14th--namely, the name of Rowan County, and his title, Deputy Clerk.  (See my earlier post here.)  [UPDATE:  Davis has informed the trial court that use of the new license form will "accommodate[] and protect[] Davis’ (and others’) sincerely-held religious beliefs, and also maintain[] a uniform marriage licensing scheme and create[] a new uniform marriage license form that is authorized by executive order and also plainly valid and indisputably recognized throughout the Commonwealth of Kentucky."]

Here's hoping this saga is, finally, coming to an end.

One legal point of note:  In his executive order, Governor Bevin reasoned that this accommodation was required by the Kentucky Religious Freedom Restoration Act, KRS 446.350, because use of the previous form "substantially burdened" certain Clerks' "refus[al] to act in a manner motivated by a sincerely held religious belief."  (That's a quote from Kentucky RFRA, which reads differently from--and more broadly than--the federal RFRA, which refers to substantially burdening "a person’s exercise of religion.")

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