# 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:** 14
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [September 8, 2015, 12:57am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/261 "2015-09-08T00:57:06Z")
> [@iiandyiiii](#): > > That was an illegal order, and the deputy clerks are required by law (per the judge’s ruling) to disobey it. Which doesn’t explain why she needs to be in jail in order for the deputy clerks to be able to disobey her directions, does it? ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [September 8, 2015, 12:58am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/262 "2015-09-08T00:58:27Z")
> [@Terr](#): > > Which is why she is in jail. But as long as she refuses to direct her deputies to issue those licenses, I believe that the law doesn’t allow them to do so. Cite, please. A specific section of the Kentucky Statutes, or a leading Kentucky case on point. Otherwise, you’ve got nuttin’. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [September 8, 2015, 12:59am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/263 "2015-09-08T00:59:07Z")
> [@hajario](#): > > Was it legal for the clerk to deny marriage licenses to people who are legally entitled to them? For Kim Davis? No, it was not legal. For the deputy clerks? Yes, it is legal. Because the couples may be legally entitled to the license, but the clerk is not authorized to do that. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [September 8, 2015, 1:01am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/264 "2015-09-08T01:01:08Z")
> [@Terr](#): > > Which doesn’t explain why she needs to be in jail in order for the deputy clerks to be able to disobey her directions, does it? Blah, blah, blah. She’s in jail for violating a court order. More made up nonsense. ---
**Author:** ![outlierrn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/outlierrn/32/3005_2.png) [@outlierrn](https://boards.straightdope.com/u/outlierrn)\ **Post date:** [September 8, 2015, 1:01am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/265 "2015-09-08T01:01:10Z")
> [@Smapti](#): > > SSM isn’t void because the courthouse is flying a gold-fringed flag, or because Ohio didn’t ratify its statehood properly, or because signing a birth certificate establishes joinder with your corporate self. Can we coin the phrase ‘gold-fringed lawyering’ to encompass all of this sort of nonsense? ---
**Author:** ![Alan\_Smithee](https://avatars.discourse-cdn.com/v4/letter/a/2acd7d/32.png) [@Alan\_Smithee](https://boards.straightdope.com/u/Alan_Smithee)\ **Post date:** [September 8, 2015, 1:06am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/266 "2015-09-08T01:06:54Z")
> [@Terr](#): > > Which doesn’t explain why she needs to be in jail in order for the deputy clerks to be able to disobey her directions, does it? She doesn’t. The judge could presumably have ordered the clerks to issue the license without jailing Ms. Davis. But since they weren’t party to the suit, he quite reasonably tried to keep them out of it, and ordered Ms. Davis herself to issue he licenses, as the law requires. When she didn’t, she was jailed for contempt. The judge then had no choice but to go to the deputy clerks and instruct them to issue the licenses. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [September 8, 2015, 1:10am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/267 "2015-09-08T01:10:27Z")
> [@Terr](#): > > Which doesn’t explain why she needs to be in jail in order for the deputy clerks to be able to disobey her directions, does it? She does not have to be in jail in order for the deputy clerks to be able to disobey her directions. She is not in jail in order for the deputy clerks to be able to disobey her directions. She is in jail because she is in contempt of court for disobeying a court order. How long she rots there is entirely irrelevant to whether or not the deputies do their jobs. You still have refused to answer my very simple question. Who is the deputies’ boss: (A) the Constitution of the USA to which they swore an oath to uphold when the took office, and the Governor of Kentucky who has directed the issuance of marriage certificates, to same sex couples, or (B) is their boss the jailbird who is incarcerated for contempt of court regarding her refusal to follow the law? ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [September 8, 2015, 1:11am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/268 "2015-09-08T01:11:42Z")
> [@Terr](#): > > “and under the direction of the circuit clerk” That addresses the hiring and swearing in. You are really reaching on this one. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [September 8, 2015, 1:16am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/269 "2015-09-08T01:16:46Z")
> [@outlierrn](#): > > Can we coin the phrase ‘gold-fringed lawyering’ to encompass all of this sort of nonsense? Please, I beg you, don’t associate the term “lawyer” with what Terr is doing. :eek: ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [September 8, 2015, 1:26am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/270 "2015-09-08T01:26:40Z")
> [@Muffin](#): > > Deputies are sworn to the office, not to a physical person. > > Once commissioned, deputies are obliged to carry out their official duties in accordance with the law. > > That is why the deputies can issue marriage licences despite the clerk not doing so at any given time (e.g. clerk off on vacation, in hospital, in jail). > > A person holding office, be it a clerk or a deputy, is sworn to carry out the duties of the office in accordance with the law. Any command that is contrary to the law is without force and effect. Therefore the illegal command by the clerk directing the deputies to not issue marriage certificates is irrelevant to their authority to issue such certificates in accordance with the law. This is basically it. I believe the reason Bunning has left her in jail is because the deputies can’t be fired as long as she is in jail, and firing the deputies is the only way Davis can actually stop them from doing their jobs. When she was physically present, and told them not to issue them, they didn’t due to fear of being insubordinate and being fired. It’s not dissimilar to Nixon’s “Saturday Night Massacre”, under the law Nixon couldn’t fire the Special Prosecutor, Archibald Cox. But he was still President, and he could sure as hell order his Attorney General to fire Cox. The AG had ministerial authority to do so, but both the AG (Elliot Richardson) and the Deputy AG (William Ruckelshaus) had promised congress they would not use their ministerial powers to fire Cox. That promise was of questionable legal binding, and the order from Nixon was outrageous but not illegal (President clearly has the legal authority to order such a thing.) Both men felt compelled to uphold their promises to Congress, and resigned. Queue the entrance of Solicitor General Robert Bork, rushed over to the White House via limousine, immediately sworn in as “acting AG”, and ordered to fire Cox. He too says he considered resigning, but he hadn’t made the promise to Congress that the previous two had, and he felt obligated to obey a direct order from the President–so he fired Cox. There were later Federal hearings into the propriety of that firing, and a judge ruled the firings improper, but it was never fully litigated out to my knowledge. Congress addressed the issue by creating legislation for special prosecutors to avoid such shenanigans happening again. If Davis isn’t in jail, I suspect her deputies are “will and pleasure” employees, and can be fired for any or no reason like any at will employee (while it’s a small county, direct deputies of an elected official would still probably be “will and pleasure” most places, lower level civil servants are usually not “will and pleasure”, but the smaller the government the more low level you can see w & p employees.) Bunning specifically gave her the option to stay out of jail if she promised to not interfere with her deputies–I think he did that because he can’t actually stop her from firing them by a legal order, but he can jail her until she swears that she won’t do so. He’s basically using his judicial power to physically prevent her from doing something she could otherwise do (fire her deputies.) If she were to get out and fire all the deputies then there would be no one other than the executive judge in Rowan County who could issue the licenses, and then you get into the legal quagmire of whether Davis is actually absent from office or not in order to allow that to happen. I think Bunning’s decision avoided the tougher legal questions by simply removing Davis’s ability to block her sworn deputies from doing something they’re legally allowed to do via their positions. It’ll be interesting to see what happens to the deputies when they ultimately get out. Davis could very well be jailed until Kentucky’s legislature meets in January and possibly passes compromise legislation. Once she’s out, there is little legal protections the deputies will have in terms of keeping their positions. ---
**Author:** ![outlierrn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/outlierrn/32/3005_2.png) [@outlierrn](https://boards.straightdope.com/u/outlierrn)\ **Post date:** [September 8, 2015, 1:31am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/271 "2015-09-08T01:31:23Z")
> [@Muffin](#): > > Please, I beg you, don’t associate the term “lawyer” with what Terr is doing. :eek: Oh good lord, no, not what I meant. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [September 8, 2015, 1:32am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/272 "2015-09-08T01:32:25Z")
> [@Terr](#): > > Deputy circuit clerks, **authorized by and under the direction of the circuit clerk** , shall have full power to perform such duties as may be performed by the circuit clerk; and any act of a deputy clerk is entitled to the same faith and credit as that of the clerk. Such authorization is inherent to the office, it accrues when they are sworn in. Just like cabinet officers of the President and their deputies and their deputies and assistants all the way down to civil servants sitting in their desks performing rote ministerial functions. The elected official (President) can fire a lot of those people, can issue orders telling them not to do things, but he actually can’t always block ministerial functions without firing people because some of those are set in statute and he can’t unilaterally alter the law. Some bureaucrats he can’t actually fire or order not to do their job, actually. Not without ending up in trouble. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [September 8, 2015, 1:39am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/273 "2015-09-08T01:39:58Z")
> [@Terr](#): > > As I said before, it makes sense with circuit clerks/deputy clerks, it makes sense with any kind of boss/deputy relationships. It is absurd to claim that the deputies are independently allowed to do anything the boss can, without any input from the boss. That negates any reason to have the boss. No, it doesn’t. They are there because many elected jobs get too big for one person to do, that is why deputies exist. That’s why the President isn’t riding around arresting fugitives, leading troops into battle, litigating cases, negotiating minutiae of treaties with minor foreign powers, working at night minting coins, and personally preparing the Federal budget in a big excel sheet in his free time. Typically if an elected official orders a deputy not to do something, and the deputy does that thing, the act of the deputy is not illegal. Instead, it is an _insubordinate act_ for which the elected official **may** be able to fire the subordinate. But it isn’t _illegal_. An example would be, Obama goes crazy and says U.S. Embassies and Consulates can no longer issue visas. Let’s say that the Ambassador present ignores that and tells his staff to continue as they normally would. They issue a bunch of visas. The President finds out. He can recall the ambassador and fire the ambassador because the law says they “serve at the pleasure of the President.” Several lower level officials at the Embassy or Consulate may also “serve at the pleasure” and could likewise be fired. I would seriously doubt the guys sitting in the little rooms doing visa interviews are “pleasure of the President” employees, instead they are civil servants who cannot be fired at the President’s whim. So not only could they not be fired for issuing the visas, the visas themselves are not invalid. ---
**Author:** ![Alan\_Smithee](https://avatars.discourse-cdn.com/v4/letter/a/2acd7d/32.png) [@Alan\_Smithee](https://boards.straightdope.com/u/Alan_Smithee)\ **Post date:** [September 8, 2015, 1:40am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/274 "2015-09-08T01:40:07Z")
I’m skeptical that she could still fire them when she gets out of jail. Even if Kentucky has no laws protecting civil servants, there are still issues if the firing is related to protected class. She couldn’t fire anyone for being black. Presumably, she couldn’t fire anyone for serving black people either. I doubt that she can now fire anyone for serving gay couples, even if sexual orientation isn’t exactly a protected class. Ordinarily, it would be up to the person fired to show evidence that the firing was based on something illegal, but I doubt she’ll get much leeway from any courts now. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [September 8, 2015, 1:43am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/275 "2015-09-08T01:43:20Z")
**Terr** - what do you think happens if Davis gets impeached, but runs again and gets elected again? She just is voted in to office again and again. You think that so long as she orders her staff to follow illegal orders, there will never be a SSM marriage license issued in that county? ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [September 8, 2015, 1:48am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/276 "2015-09-08T01:48:43Z")
> [@Terr](#): > > Which doesn’t explain why she needs to be in jail in order for the deputy clerks to be able to disobey her directions, does it? Who says this? She’s in jail for refusing to follow a court order. The clerks could have disobeyed her orders, even if she’d been right there in the office with them, screaming at them the whole time. “Don’t issue that permit!” “Sorry, ma’am, but the law says that I must. Why don’t you go take it up with the judge?” They didn’t do this, because they were cowed, but they had every right to do it that way, and, indeed, the legal obligation to. They flirted with contempt themselves by hesitating to obey the law. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [September 8, 2015, 1:50am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/277 "2015-09-08T01:50:24Z")
> [@Martin\_Hyde](#): > > No, it doesn’t. They are there because many elected jobs get too big for one person to do, that is why deputies exist. That’s why the President isn’t riding around arresting fugitives, leading troops into battle, litigating cases, negotiating minutiae of treaties with minor foreign powers, working at night minting coins, and personally preparing the Federal budget in a big excel sheet in his free time. > > Typically if an elected official orders a deputy not to do something, and the deputy does that thing, the act of the deputy is not illegal. Instead, it is an _insubordinate act_ for which the elected official **may** be able to fire the subordinate. But it isn’t _illegal_. > > An example would be, Obama goes crazy and says U.S. Embassies and Consulates can no longer issue visas. Let’s say that the Ambassador present ignores that and tells his staff to continue as they normally would. They issue a bunch of visas. The President finds out. He can recall the ambassador and fire the ambassador because the law says they “serve at the pleasure of the President.” Several lower level officials at the Embassy or Consulate may also “serve at the pleasure” and could likewise be fired. I would seriously doubt the guys sitting in the little rooms doing visa interviews are “pleasure of the President” employees, instead they are civil servants who cannot be fired at the President’s whim. So not only could they not be fired for issuing the visas, the visas themselves are not invalid. But the difference is that the clerks in embassies and consulates issuing visas and passports are not doing so _as deputies of the President_. They don’t need the president to delegate authority to them to issue the visas, etc, which the president would otherwise have to issue in person. But a deputy of the county clerk can only validly perform the functions deputed to them by the clerk. So if they issue licences without having that function deputed to them, they can be fired _and_ the licences are at least arguably invalid. ---
**Author:** ![Grotonian](https://avatars.discourse-cdn.com/v4/letter/g/c2a13f/32.png) [@Grotonian](https://boards.straightdope.com/u/Grotonian)\ **Post date:** [September 8, 2015, 1:56am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/278 "2015-09-08T01:56:18Z")
> [@Muffin](#): > > Last I heard, Kentucky marriage licences were irrelevant to admission to Cuba, and more to the point, they are not valid for getting married in Cuba. > > As far as signatures go, they too are irrelevant in the extant matter. The deputies had the authority to issue marriage licences, and they did issue marriage licences. Skipping one step in the process (the signature) does not invalidate the licenses. What counts is that they were duly issued. I challenge you to provide proof of your assertion to the contrary. > > Most notably, the county clerk’s office has the ability and obligation to remedy the its own inconsequential defects when the licences are returned to them after execution of the marriage certificate portion by the officiant and witnesses. The remedy at that time is to simply accept the unsigned license and fully signed certificate and continue to process it as a validly issued license and validly completed certificate. Remember that the purpose of a signature is to prove that the document was indeed issued by an authorized person. Is there any doubt at all that these licenses were not issued under due authority? The proposition that they were not issued is laughable. > > Knowingly and deliberately issuing a license with the intention of it being invalid for its purpose and thereby being injurious to the constitutional rights of the parties, and then knowing and deliberately refusing to correct the matter upon return of the document, would likely lead to both criminal charges and civil actions (see upthread for my cite re. criminal liability). I’ve already made that argument: that the county just needs to have an authorized person sign them. You are probably right; the licenses are probably perfectly legal as is, by virtue of having been legally issued to the recipients by the county clerk’s office. But sometimes when a document requires an authorized signature to be valid, an authorized signature is indeed required. I am neither a lawyer, nor a Kentuckian, nor in the market for a marriage license. I don’t care about this case. But I still think it’s fascinating. ---
**Author:** ![Alan\_Smithee](https://avatars.discourse-cdn.com/v4/letter/a/2acd7d/32.png) [@Alan\_Smithee](https://boards.straightdope.com/u/Alan_Smithee)\ **Post date:** [September 8, 2015, 1:56am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/279 "2015-09-08T01:56:58Z")
> [@UDS](#): > > But the difference is that the clerks in embassies and consulates issuing visas and passports are not doing so _as deputies of the President_. They don’t need the president to delegate authority to them to issue the visas, etc, which the president would otherwise have to issue in person. > > But a deputy of the county clerk can only validly perform the functions deputed to them by the clerk. So if they issue licences without having that function deputed to them, they can be fired _and_ the licences are at least arguably invalid. Between this and the other thread, I think it’s clear you have an understanding of the words used here that does not match that found in the statutes. Unless you have a cite. **Terr** couldn’t find one, and he sure tried, but maybe you’ll have better luck. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [September 8, 2015, 2:04am UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/280 "2015-09-08T02:04:03Z")
> [@UDS](#): > > But the difference is that the clerks in embassies and consulates issuing visas and passports are not doing so _as deputies of the President_. They don’t need the president to delegate authority to them to issue the visas, etc, which the president would otherwise have to issue in person. > > But a deputy of the county clerk can only validly perform the functions deputed to them by the clerk. So if they issue licences without having that function deputed to them, they can be fired _and_ the licences are at least arguably invalid. What is delegated or not is actually structured by two things in the Presidential example: by Congress, when they pass laws establishing various departments/agencies/bureaus and the higher offices in those bureaus, and executive orders, which are “in force” perpetually until the President rescinds them. There is likely a similar structure with deputy clerks in which some duties only exist because the clerk has specifically said “one of your duties will be going to the supply store to get new note pads.” There are also duties that exist as a matter of law by fact of the office of deputy, and just like President the Clerks in Kentucky don’t write those laws but surely must follow them. In this case, because it’s already been cited in this thread, we know the answer: Kentucky law specifically states that deputies can issue marriage licenses as a ministerial function of their sworn position. So it’s actually quite similar to my example, and to be honest it’s typical of how ministerial functions are passed on to lower level officials via statute. This streamlines things but also empowers the bureaucracy to act independently of the elected official, something that has both positives and negatives, but is largely a necessity of governments of any meaningful size. [Previous page](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227.md?page=13) [Next page](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227.md?page=15)