# 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:** 2
**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, 2:27pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/21 "2015-09-07T14:27:46Z")
> [@Ambrosio\_Spinola](#): > > 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. For what it’s worth, I think the federal court agrees with you. (So do I, but that’s definitely worth less.) The licences being issued here are being issued not on the authority of the clerk or her deputies but on the authority of the court, which has ordered the assistant to issue them. and to any objection that the Kentucky marriage statute doesn’t provide for the federal courts to authorise the issue of marriage licences, I think the court’s answer will be something like “the limitations of the Kentucky marriage statute can’t be allowed to deprive these couples of their right to the equal protection of the laws, and the court has made the order that it thinks necessary to prevent that happening”. ---
**Author:** ![enipla](https://avatars.discourse-cdn.com/v4/letter/e/54ee81/32.png) [@enipla](https://boards.straightdope.com/u/enipla)\ **Post date:** [September 7, 2015, 2:32pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/22 "2015-09-07T14:32:37Z")
I’m sure that a clerks deputy can sign or rubber stamp the document in the County Clerks absence (vacation, illness, meetings, jail 😃 and such). There are hundreds of different types of documents that the Clerk and Recorder, record. The issue is, I think, that the 3 SSM licenses where issued without any signature or stamp. Since the judge talked to all 6 deputies in the office, and said ‘no shenanigans’ I could see the lack of a signature or stamp as contempt of court. ---
**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, 3:05pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/23 "2015-09-07T15:05:14Z")
> [@enipla](#): > > I’m sure that a clerks deputy can sign or rubber stamp the document in the County Clerks absence (vacation, illness, meetings, jail 😃 and such). There are hundreds of different types of documents that the Clerk and Recorder, record. > > The issue is, I think, that the 3 SSM licenses where issued without any signature or stamp. > > Since the judge talked to all 6 deputies in the office, and said ‘no shenanigans’ I could see the lack of a signature or stamp as contempt of court. Let’s say that I went to get married, and the clerk issued me a license and told me it was a marriage license. Years later, on my death, my evil brother (disclosure: my brother’s awesome, not evil) my evil brother contested the marriage because the clerk had forgotten to sign the license. Does anyone genuinely think that he’d succeed in contesting the marriage? ---
**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 7, 2015, 3:35pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/24 "2015-09-07T15:35:21Z")
**Terr** - if a statute says that a particular person (as in a person holding a specified office) shall perform some duty, are you of the opinion that the duty may never be delegated to anyone else, including another official in the same office? ---
**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, 3:49pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/25 "2015-09-07T15:49:36Z")
> [@Ravenman](#): > > **Terr** - if a statute says that a particular person (as in a person holding a specified office) shall perform some duty, are you of the opinion that the duty may never be delegated to anyone else, including another official in the same office? But it wasn’t delegated. ---
**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 7, 2015, 3:53pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/26 "2015-09-07T15:53:05Z")
> [@Terr](#): > > But it wasn’t delegated. And what is your view of the supremacy clause of the Constitution? In your opinion, can individuals disregard settled Federal law? ---
**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, 4:06pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/27 "2015-09-07T16:06:44Z")
> [@Ravenman](#): > > And what is your view of the supremacy clause of the Constitution? In your opinion, can individuals disregard settled Federal law? What does that have to do with it? Are those gays who are getting marriage licenses in Rowan county marrying under federal law? ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [September 7, 2015, 4:12pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/28 "2015-09-07T16:12:31Z")
> [@Terr](#): > > What does that have to do with it? Are those gays who are getting marriage licenses in Rowan county marrying under federal law? Is it your opinion that the Supreme Court’s ruling in Obergefell v. Hodges does not apply to Rowan county? ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [September 7, 2015, 4:15pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/29 "2015-09-07T16:15:24Z")
> [@Terr](#): > > I am sure the couples that were issued the invalid licenses are so grateful to the judge for yanking that football. I’m sure they’re fine with it. They have their license, they will use that to get married, and their marriages will be recorded by the state. Imagine having your drivers license challenged 20 years after it was issued because the guy who gave you the drivers test forgot to sign the test results. I think people over-estimate the power of “legal technicalities.” (“The law does not concern itself with trifles”) _De Minimis Non Curat Lex_ : Latin: a common law principle whereby judges will not sit in judgment of extremely minor transgressions of the law. ---
**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 7, 2015, 4:15pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/30 "2015-09-07T16:15:50Z")
> [@Terr](#): > > What does that have to do with it? Are those gays who are getting marriage licenses in Rowan county marrying under federal law? Seems like a simple question. Do you think there are exceptions to the supremacy clause? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [September 7, 2015, 4:22pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/31 "2015-09-07T16:22:08Z")
> [@](#): > > …I am sure the couples that were issued the invalid licenses are so grateful to the judge for yanking that football… Gentlepersons, you are missing the point! Arguing over niggling points of legality, you fail to see the dread threat to the Republic from liberal activist judges. Once they figure out a way to reconcile\* sharia\* law with depraved liberal sexual license, there will be no stopping _mullah_ Obama! Wake up, America! Connect the dot! ---
**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, 4:22pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/32 "2015-09-07T16:22:41Z")
> [@Smapti](#): > > Is it your opinion that the Supreme Court’s ruling in Obergefell v. Hodges does not apply to Rowan county? Of course it does. And still the KY law applies. It was not followed in issuing the licenses after Davis was jailed. They were issued under KY law, not under any federal law. ---
**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, 4:23pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/33 "2015-09-07T16:23:54Z")
> [@Ravenman](#): > > Seems like a simple question. Do you think there are exceptions to the supremacy clause? No. Don’t see how that applies in this case. The licenses in question were issued under KY law, not under any federal law. ---
**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, 4:24pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/34 "2015-09-07T16:24:46Z")
> [@Terr](#): > > But it wasn’t delegated. That’s not how deputies work. Reread the cite in post 15: > [@](#): > > 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. The mere fact of employing deputies delegates authority to them to perform the lawful duties of the officer. If the deputies use that authority in a way the clerk doesn’t like, then she can bring sanctions against them–but their use of the authority in a way she doesn’t approve of doesn’t invalidate the actions they take with that authority. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [September 7, 2015, 4:26pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/35 "2015-09-07T16:26:06Z")
> [@Terr](#): > > Of course it does. And still the KY law applies. It was not followed in issuing the licenses after Davis was jailed. They were issued under KY law, not under any federal law. If the result of the KY law is that same-sex couples cannot legally marry in Rowan county, then the KY law is null and void. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [September 7, 2015, 4:29pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/36 "2015-09-07T16:29:20Z")
> [@elucidator](#): > > Gentlepersons, you are missing the point! Arguing over niggling points of legality, you fail to see the dread threat to the Republic from liberal activist judges. Once they figure out a way to reconcile\* sharia\* law with depraved liberal sexual license, there will be no stopping _mullah_ Obama! > > Wake up, America! Connect the dot! Exactly, except this Federal Judge was appointed by George W. Bush and is considered extremely conservative. The problem for the right wing crazies is that even their own kind of Judges aren’t buying what they’re selling. No wonder they’re freaking out. ---
**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, 4:30pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/37 "2015-09-07T16:30:38Z")
> [@Smapti](#): > > If the result of the KY law is that same-sex couples cannot legally marry in Rowan county, then the KY law is null and void. If the KY law is null and void, then under what law are the licenses issued? ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [September 7, 2015, 4:33pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/38 "2015-09-07T16:33:50Z")
> [@Terr](#): > > If the KY law is null and void, then under what law are the licenses issued? The same law, [excerpting the sections](https://en.wikipedia.org/wiki/Severability) that you believe prohibit same-sex couples in Rowan county from marrying. ---
**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, 4:35pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/39 "2015-09-07T16:35:09Z")
> [@Terr](#): > > If the KY law is null and void, then under what law are the licenses issued? Fortunately, **this is a red herring**. The chain of events is like this: -Kim Davis got to be county clerk. -Davis hired some deputies. - **The deputies have authority to perform any of the jobs that go to a county clerk.** This is a key point, with cited statute, that you persistently ignore. -Davis illegally refuses to do her job. -Davis goes to jail. - **The deputies, freed from intimidation by Davis, use their authority to perform the jobs of a county clerk that they’re deputized to perform**. You seem to be suggesting that deputies are only authorized to perform those specific duties that the clerk tells them to perform. **That is not the case**. The relevant statute authorizes them to perform all duties that the clerk **may** perform, not that the clerk **allows them** to perform. ---
**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, 4:35pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/40 "2015-09-07T16:35:32Z")
> [@Smapti](#): > > The same law, [excerpting the sections](https://en.wikipedia.org/wiki/Severability) that you believe prohibit same-sex couples in Rowan county from marrying. If you excerpt that section, then there is nothing that authorizes issuing the license. As I said, a judge can invalidate a law. But a judge cannot make new law. [Previous page](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227.md?page=1) [Next page](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227.md?page=3)