# According to KY law, the same sex marriage licenses **URL:** \ **Category:** Great Debates\ **Created:** [September 7, 2015, 3:00am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227 "2015-09-07T03:00:47Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [September 7, 2015, 3:00am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/1 "2015-09-07T03:00:47Z")
that were issued in Rowan county after the county clerk was jailed are invalid. Or all other marriage licenses, if there were any. [http://www.lrc.ky.gov/statutes/statute.aspx?id=36473](http://www.lrc.ky.gov/statutes/statute.aspx?id=36473) No marriage shall be solemnized without a license therefor. The license shall be issued **by the clerk of the county** in which the female resides at the time, unless the female is eighteen (18) years of age or over or a widow, and the license is issued on her application in person or by writing signed by her, in which case it may be issued by any county clerk. I am sure the couples that were issued the invalid licenses are so grateful to the judge for yanking that football. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [September 7, 2015, 3:06am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/2 "2015-09-07T03:06:54Z")
> [@Terr](#): > > that were issued in Rowan county after the county clerk was jailed are invalid. Or all other marriage licenses, if there were any. > > [http://www.lrc.ky.gov/statutes/statute.aspx?id=36473](http://www.lrc.ky.gov/statutes/statute.aspx?id=36473) > > No marriage shall be solemnized without a license therefor. The license shall be issued **by the clerk of the county** in which the female resides at the time, unless the female is eighteen (18) years of age or over or a widow, and the license is issued on her application in person or by writing signed by her, in which case it may be issued by any county clerk. > > I am sure the couples that were issued the invalid licenses are so grateful to the judge for yanking that football. You aren’t reading that correctly if you think the licenses are invalid. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [September 7, 2015, 3:07am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/3 "2015-09-07T03:07:59Z")
The licenses were not issued by “the clerk of the county”. Or by any “county clerk”. Thus they are invalid, according to that law. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [September 7, 2015, 3:11am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/4 "2015-09-07T03:11:11Z")
> [@Terr](#): > > The licenses were not issued by “the clerk of the county”. Or by any “county clerk”. Thus they are invalid, according to that law. What if there was no female involved? In any case, IANAL but I think that the newer ruling for same sex marriage invalidates the older law if there are conflicts. Not sure why the judge would be to blame in any case when it was Kim Davis who refused to issue the licenses. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [September 7, 2015, 3:14am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/5 "2015-09-07T03:14:00Z")
> [@iiandyiiii](#): > > What if there was no female involved? Another interesting question. > [@](#): > > In any case, IANAL but I think that the newer ruling for same sex marriage invalidates the older law if there are conflicts. A ruling can invalidate a law. But it cannot create a new law. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [September 7, 2015, 3:14am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/6 "2015-09-07T03:14:12Z")
[http://www.lrc.ky.gov/statutes/statute.aspx?id=36490](http://www.lrc.ky.gov/statutes/statute.aspx?id=36490) > [@](#): > > 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. [http://www.lrc.ky.gov/statutes/statute.aspx?id=36491](http://www.lrc.ky.gov/statutes/statute.aspx?id=36491) > [@](#): > > 402.250 Circuit Court may affirm or avoid marriage. > > Where doubt is felt as to the validity of a marriage, either party may, by petition in Circuit Court, demand its avoidance or affirmance; but where one (1) of the parties was within the age of consent at the time of marriage, the party who is of proper age may not bring such a proceeding for that cause against the party under age. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [September 7, 2015, 3:16am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/7 "2015-09-07T03:16:01Z")
> [@BrightNShiny](#): > > [http://www.lrc.ky.gov/statutes/statute.aspx?id=36490](http://www.lrc.ky.gov/statutes/statute.aspx?id=36490) Ok. But the county judge/executive did not issue those licenses. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [September 7, 2015, 3:18am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/8 "2015-09-07T03:18:11Z")
> [@Terr](#): > > Ok. But the county judge/executive did not issue those licenses. If anyone who cares notices this, it sounds like it could be fixed very easily. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [September 7, 2015, 3:18am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/9 "2015-09-07T03:18:37Z")
> [@Terr](#): > > The licenses were not issued by “the clerk of the county”. Or by any “county clerk”. Thus they are invalid, according to that law. The law doesn’t say that, though, does it? Where the law prescribes a procedure to be followed, that’s mainly a direction to the officials concerned as to how they should proceed. It doesn’t necessarily follow that if they don’t follow the precise procedure outlined, the whole exercise is a legal nullity. In criminal matters, any failure by the authorities to proceed as the statute directs generally _will_ result in a legal nullity; this is because of the particular onus on the state in cases where the liberty of the citizen is limited. But marriage is not a crime. If the question is ever raised in proceedings challenging the validity of a marriage celebrated on foot of a licence issued without the clerk’s signature in this case, it’s a matter for the courts to decide, reading the statute as a whole, whether the intention of the legislature, in providing that licences were to be issued by the clerk, was to invalidate licences not issued by the clerk. Particularly when licences are issued pursuant to an order of a federal court because of the refusal of the clerk to issue the licences which the statute requires her to issue. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [September 7, 2015, 3:22am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/10 "2015-09-07T03:22:33Z")
> [@Terr](#): > > Ok. But the county judge/executive did not issue those licenses. Well, I don’t know all the details about this case, but your point will ultimately hinge on the Kentucky courts, since according to statute they get to determine whether a marriage is valid or not. I don’t have the time to wade through a bunch of Kentucky case law to determine if these marriages are valid or not. But, I think it’s pretty clear that you don’t even have a basic grasp of the issue, or you would have been aware of the other statutes. However, Federal judges do routinely wade through state law and legal rulings when rendering their decisions. Maybe this Federal judge made a bad ruling and maybe he didn’t consider Kentucky law at all. It’s possible, but it’s an extraordinary claim, so if that’s the claim you are making, then provide a link to his rulings and make a legal argument as to how his rulings messed up. Because right now, I’ve thrown out two statutes that call your “analysis” into doubt. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [September 7, 2015, 3:32am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/11 "2015-09-07T03:32:38Z")
> [@BrightNShiny](#): > > However, Federal judges do routinely wade through state law and legal rulings when rendering their decisions. Maybe this Federal judge made a bad ruling and maybe he didn’t consider Kentucky law at all. It’s possible, but it’s an extraordinary claim, so if that’s the claim you are making, then provide a link to his rulings and make a legal argument as to how his rulings messed up. It is possible and it is true. > **[The Judge In The Kentucky Clerk Case Is Making The Situation Worse](https://www.buzzfeednews.com/article/chrisgeidner/the-judge-in-the-kentucky-clerk-case-is-making-the-situation)** > > In Kentucky, U.S. District Court Judge David Bunning has issued — or not issued — a series of orders and statements in the Kim Davis case that have left major questions about what he means. Although five of Davis’s deputies have stated that they would issue marriage licenses, at least two — through their lawyers — questioned whether they would have the authority to do so. “Whether a license issued by the Rowan County Clerk’s Office is valid or not,” Bunning said in court, “I am not saying it is or it isn’t.” ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [September 7, 2015, 3:44am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/12 "2015-09-07T03:44:56Z")
> [@Terr](#): > > that were issued in Rowan county after the county clerk was jailed are invalid. Or all other marriage licenses, if there were any. > > [http://www.lrc.ky.gov/statutes/statute.aspx?id=36473](http://www.lrc.ky.gov/statutes/statute.aspx?id=36473) > > No marriage shall be solemnized without a license therefor. The license shall be issued **by the clerk of the county** in which the female resides at the time, unless the female is eighteen (18) years of age or over or a widow, and the license is issued on her application in person or by writing signed by her, in which case it may be issued by any county clerk. What are your thoughts on what “deputy” means? Can you show that prior to her imprisonment Davis never allowed her deputies to handle marriage licenses? Can you show where the issuance of the license must be done directly by the clerk and not by her deputies? Can you explain why [Rowan County attorney disagrees with you](http://www.washingtonpost.com/news/post-nation/wp/2015/09/04/with-defiant-clerk-in-jail-gay-marriage-licenses-finally-issued-in-kentucky-county/)? > [@](#): > > Rowan County Attorney Cecil Watkins has previously said deputy clerks don’t need Davis’s approval to issue valid marriage licenses. What’s your understanding of whether deputies across Kentucky have been in the habit of issuing marriage licenses as part of their deputized authority? How many marriages in Kentucky do you anticipate delegitimizing via this argument? I suspect that most of the questions above have the same answer: “Uh, I dunno, I didn’t think about that.” > [@](#): > > I am sure the couples that were issued the invalid licenses are so grateful to the judge for yanking that football. Yeah, I’m unironically sure. The folks leading this legal challenge are no dummies. They know that this is a slightly risky thing to do, and they’re deliberately forcing the issue. Your false sympathy with them is risible. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [September 7, 2015, 3:47am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/13 "2015-09-07T03:47:49Z")
> [@Terr](#): > > It is possible and it is true. > > [The Judge In The Kentucky Clerk Case Is Making The Situation Worse](http://www.buzzfeed.com/chrisgeidner/the-judge-in-the-kentucky-clerk-case-is-making-the-situation#.qclY2QL5J) > > Although five of Davis’s deputies have stated that they would issue marriage licenses, at least two — through their lawyers — questioned whether they would have the authority to do so. > > “Whether a license issued by the Rowan County Clerk’s Office is valid or not,” Bunning said in court, “I am not saying it is or it isn’t.” It looks like a fuller explanation of the order might be forthcoming from Bunning, so we can’t say anything yet about whether or not he considered Kentucky law. However, that Buzzfeed article gives 2 possible legal theories under which these licenses would be valid. So, unless you can provide Kentucky or Federal case law that disputes those legal theories, we basically have your say-so against a Federal judge’s say-so. I’m inclined to defer to the Federal judge until someone can actually make a legal argument as to why those other 2 theories don’t apply. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [September 7, 2015, 3:52am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/14 "2015-09-07T03:52:31Z")
I’ll also add, that while I’m not familiar with Ky case law, in every state I’m familiar with, ministerial errors on the part of government officials are not, by themselves, enough to invalidate a marriage when the married couple were acting in good-faith. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [September 7, 2015, 3:56am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/15 "2015-09-07T03:56:26Z")
Just in case anyone’s interested, here’s the basis for one of the legal theories mentioned in the Buzzfeed article: [http://www.lrc.ky.gov/statutes/statute.aspx?id=22875](http://www.lrc.ky.gov/statutes/statute.aspx?id=22875) > [@](#): > > 61.035 Deputy may act for ministerial officer. > > Any duty enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, > and any act permitted to be done by him, may be performed by his lawful deputy. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [September 7, 2015, 4:05am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/16 "2015-09-07T04:05:41Z")
> [@Terr](#): > > The licenses were not issued by “the clerk of the county”. Or by any “county clerk”. Thus they are invalid, according to that law. Why do you think that a deputy county clerk is not a county clerk? What is your basis in Kentucky law for that belief? ---
**Author:** ![Ambrosio\_Spinola](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Ambrosio\_Spinola](https://boards.straightdope.com/u/Ambrosio_Spinola)\ **Post date:** [September 7, 2015, 4:14am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/17 "2015-09-07T04:14:35Z")
I’m no expert on Kentucky law, but in this post _Obergefell_ world these couples have the Fourteenth Amendment right to marry in Rowan County or anywhere else in the United States. Davis may have the ability to refuse to issue marriage licenses while she is in the office and to threaten to fire her deputies if they issue them, but by what possible authority can she veto valid marriage licenses that she just doesn’t happen to approve of? I assume her office continues to function if she had to call in sick one day or takes a vacation for a week, or as in this case is in the pokey for an indefinite time. Maybe if one of the marriages doesn’t work out then one of the parties might try to claim the license was invalid, but they might be estopped from making that argument. I don’t even know who else would have standing to complain. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [September 7, 2015, 4:49am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/18 "2015-09-07T04:49:54Z")
> [@Ambrosio\_Spinola](#): > > I’m no expert on Kentucky law, but in this post _Obergefell_ world these couples have the Fourteenth Amendment right to marry in Rowan County or anywhere else in the United States. Davis may have the ability to refuse to issue marriage licenses while she is in the office and to threaten to fire her deputies if they issue them, but by what possible authority can she veto valid marriage licenses that she just doesn’t happen to approve of? I assume her office continues to function if she had to call in sick one day or takes a vacation for a week, or as in this case is in the pokey for an indefinite time. > > Maybe if one of the marriages doesn’t work out then one of the parties might try to claim the license was invalid, but they might be estopped from making that argument. I don’t even know who else would have standing to complain. The argument is basically that it isn’t a valid marriage licence unless issued by the county clerk (or by somebody deputed by her to act on her behalf in issued marriage licences). So she is not so much vetoing marriage licences as simply not issuing them, or deputing anyone else to do so. If she is sick, or on holidays, she presumably has up to now deputed to her assistants the authority to issue licences. But she’s not sick, or on leave, and can presumably withdraw any authority she has previously deputed that might cover the present circumstances. As to who will challenge, I think you’re right in saying that the most likely challenge to the validity of a marriage celebrated on the basis of these licences will be from one of the spouses, when the relationship has broken down and they think an annulment will be more to their advantage than a divorce. As to whether they would be estopped from raising the point, I can’t say. But we could also imagine a challenge after the death of one spouse from, say, next of kin who may stand to inherit if the marriage is void. They are certainly not estoppped. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [September 7, 2015, 12:50pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/19 "2015-09-07T12:50:49Z")
> [@UDS](#): > > If she is sick, or on holidays, she presumably has up to now deputed to her assistants the authority to issue licences. But she’s not sick, or on leave, and can presumably withdraw any authority she has previously deputed that might cover the present circumstances. I’m not sure she can. In digging around KY statutes, I came across one that said the clerk was responsible for the actions of her deputies. It was in the context of fiscal irresponsibility, but the gist was, if a deputy does it, it reflects on the clerk. If she hasn’t fired the deputies, I think she continues to be responsible for their actions–even if their actions are doing what the law requires, and she doesn’t want them to do so. ---
**Author:** ![Ambrosio\_Spinola](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Ambrosio\_Spinola](https://boards.straightdope.com/u/Ambrosio_Spinola)\ **Post date:** [September 7, 2015, 1:06pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/20 "2015-09-07T13:06:34Z")
> [@UDS](#): > > The argument is basically that it isn’t a valid marriage licence unless issued by the county clerk (or by somebody deputed by her to act on her behalf in issued marriage licences). So she is not so much vetoing marriage licences as simply not issuing them, or deputing anyone else to do so. I get that, but the argument essentially requires asserting that the citizens of a Kentucky county can have no judicial relief against a clerk. This is the part of Kentucky law I don’t know about, but the district court determined that she can’t just unilaterally declare her county out of the marriage business. (I understand that in Alabama the statutes don’t require the relevant authorities to issue marriage licenses but just permit it, which is why some of those counties have just stopped issuing and haven’t been challenged as of yet.) Given that, the citizens of Rowan County have the Constitutional right to marry the person of their choice (subject to the various caveats of _Obergefell_, _Loving_, _Zablocki_, etc.) and to the extent the Kentucky statute conflicts with that it is invalid. Her attorneys seem to be arguing that the clerk has the power to block valid marriages at her own discretion even when she is acting unlawfully and has already been judicially determined to be acting unlawfully, and this surely cannot be true. [Next page](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227.md?page=2)