# 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:** 4
**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, 5:10pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/61 "2015-09-07T17:10:39Z")
> [@Procrustus](#): > > This is where I think you need a cite. See OP. It is a fact that even the federal judge that ordered Davis jailed doesn’t know whether the licenses issued under his orders are valid or not. ---
**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 7, 2015, 5:12pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/62 "2015-09-07T17:12:03Z")
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. ---
**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, 5:12pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/63 "2015-09-07T17:12:46Z")
> [@Terr](#): > > See OP. See posts #6, #12, and #15. The OP is thus refuted. ---
**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, 5:14pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/64 "2015-09-07T17:14:57Z")
> [@Terr](#): > > I am not familiar with that state’s laws at that time. Was there a state law at the time of the action you’re referring to that required that the white schools be segregated or stated that the superintendent had the sole authority to decide whether they would be? For the sake of argument, let’s say there was. Follow me in this hypothetical: SCOTUS orders schools to be desegregated. Local law in Terr County requires that the superintendent be responsible for enrollment of all students in public schools. John is a black student who, against the wishes of the superintendent, is escorted by the National Guard into a high school were he completes his senior year. If we take your logic and apply it to this situation - that regardless of the Supreme Court decision, only the superintendent (not a Federal judge, not someone else acting in the superintendent’s name while disobeying the direction of the superintendent) can truly, legally authorize a student to attend high school. Since John attends high school against the orders of the superintendent, orders which are clearly illegal under the Brown decision, one would have to conclude the John is not entitled to a high school diploma. Am I altering your logic in any way? ---
**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, 5:16pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/65 "2015-09-07T17:16:34Z")
> [@Terr](#): > > See OP. It is a fact that even the federal judge that ordered Davis jailed doesn’t know whether the licenses issued under his orders are valid or not. The clerk’s office is giving these couple licenses. They are using those licenses to get married. Any “lack of authority” for the clerks to issue the license is not the couple’s problem anymore. Once the marriage certificate is issued and recorded, no once cares about the license anymore. ---
**Author:** ![Kolak\_of\_Twilo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kolak_of_twilo/32/73_2.png) [@Kolak\_of\_Twilo](https://boards.straightdope.com/u/Kolak_of_Twilo)\ **Post date:** [September 7, 2015, 5:18pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/66 "2015-09-07T17:18:55Z")
> [@Smapti](#): > > You’re not going to find some technicality that overrides the Supreme Court and allows you to keep abusing the law discriminating against gays and lesbians. > > [snip] > > Marriage equality is the supreme law of the land. Accept it and move on. > [@Procrustus](#): > > Yeah, but what the hell are you going to do about it? Tell us how you think this will play out. This is where I find this all to be such high comedy. All these jokers out there, whether on this board, Facebook or the dick who is Kim Davis’ lawyer seem to think there is some magic phrase or word they are going to be able to employ and make all these marriages invalid and free her from jail. SCOTUS was very clear in their opinion in Obergefell: The right to marry is guaranteed to gay people under the Due Process Clause and the Equal Protection Clause. Done and done. The argument that courts don’t make laws gets them nothing because it isn’t what happened. It is nothing more than a red herring. The court simply ruled that any law or part of a law denying marriage to same sex couples is invalid and as a result those marriages must be allowed. The States relented because they knew they had no choice in the matter. End. Of. Story. Given that SCOTUS already turned down one appeal from the dickhead lawyer representing Ms. Davis, I’m curious who he thinks is going to overturn any of this on appeal. Even if he manages to find a judge dumb enough to go along with his reasoning it will ultimately fail because the decision in Obergefell is the final word on the subject. Why is that so hard for the bigots to grasp? The only option that remains is to amend the U.S. Constitution to make marriage between one man and one woman. And good luck with that assholes. ---
**Author:** ![dofe](https://avatars.discourse-cdn.com/v4/letter/d/7ba0ec/32.png) [@dofe](https://boards.straightdope.com/u/dofe)\ **Post date:** [September 7, 2015, 5:19pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/67 "2015-09-07T17:19:54Z")
> [@Procrustus](#): > > 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. Agreed. While I enjoy the discussion in this thread, Terr’s assertion, relying entirely on a minor technicality, reminds me of the arguments made by tax protesters who often think they have somehow stumbled on a technicality that will help them outsmart the courts and other trained lawyers. ---
**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, 5:25pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/68 "2015-09-07T17:25:13Z")
> [@Ravenman](#): > > For the sake of argument, let’s say there was. Follow me in this hypothetical: > > SCOTUS orders schools to be desegregated. Local law in Terr County requires that the superintendent be responsible for enrollment of all students in public schools. John is a black student who, against the wishes of the superintendent, is escorted by the National Guard into a high school were he completes his senior year. > > If we take your logic and apply it to this situation - that regardless of the Supreme Court decision, only the superintendent (not a Federal judge, not someone else acting in the superintendent’s name while disobeying the direction of the superintendent) can truly, legally authorize a student to attend high school. Since John attends high school against the orders of the superintendent, orders which are clearly illegal under the Brown decision, one would have to conclude the John is not entitled to a high school diploma. > > Am I altering your logic in any way? Yes in the case of your hypothetical, John would have to wait until either the superintendent is fired or dismissed or otherwise compelled to act differently or the law is changed. Now - was your hypothetical actually the case? ---
**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, 5:29pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/69 "2015-09-07T17:29:44Z")
> [@Terr](#): > > Yes in the case of your hypothetical, John would have to wait until either the superintendent is fired or dismissed or otherwise compelled to act differently or the law is changed. > > Now - was your hypothetical actually the case? Ask Governor Wallace. ---
**Author:** ![slash2k](https://avatars.discourse-cdn.com/v4/letter/s/439d5e/32.png) [@slash2k](https://boards.straightdope.com/u/slash2k)\ **Post date:** [September 7, 2015, 5:33pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/70 "2015-09-07T17:33:04Z")
> [@Terr](#): > > I am not familiar with that state’s laws at that time. Was there a state law at the time of the action you’re referring to that required that the white schools be segregated or stated that the superintendent had the sole authority to decide whether they would be? In 2015, it is STILL part of the [Alabama Constitution](http://alisondb.legislature.state.al.us/alison/codeofalabama/constitution/1901/constitution1901_toc.htm) that public schools in that state are segregated by race: > [@](#): > > Section 256: The legislature shall establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof between the ages of seven and twenty-one years … Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race. Do you think a school official’s decisions consistent with this provision would be upheld as lawful? ---
**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 7, 2015, 5:34pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/71 "2015-09-07T17:34:45Z")
> [@Terr](#): > > It is absurd to claim that, when the law says “The license shall be issued by the clerk of the county”, the clerk’s deputies can issue licenses against the clerk’s express instructions. The law disgrees with you, Terr: [http://www.lrc.ky.gov/Statutes/statute.aspx?id=36475](http://www.lrc.ky.gov/Statutes/statute.aspx?id=36475) > [@](#): > > 402.100 Marriage license . . . . (1) (c) The date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license. ---
**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, 5:36pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/72 "2015-09-07T17:36:00Z")
> [@slash2k](#): > > In 2015, it is STILL part of the [Alabama Constitution](http://alisondb.legislature.state.al.us/alison/codeofalabama/constitution/1901/constitution1901_toc.htm) that public schools in that state are segregated by race: For that matter, the snippet of law quoted in the OP specifies that a marriage license be issued in the county where “the female” resides. We can, since the law must be read rigidly word-for-word and judges cannot make new laws, determine that a female is a fundamental component of a marriage under the laws of Kentucky. OP, is it your opinion that the law of the state of Kentucky forbids two men from marrying, and that a marriage license between two men cannot be legally issued under the law quoted in the OP, in spite of Obergefell? If not, then on what basis do you find that clause to be more severable than the one you interpret as empowering the county clerk and only the county clerk to issue the license? ---
**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, 5:36pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/73 "2015-09-07T17:36:37Z")
> [@slash2k](#): > > Do you think a school official’s decisions consistent with this provision would be upheld as lawful? No, because it was struck down. As I said, a judge can invalidate a law. But cannot create a new 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, 5:37pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/74 "2015-09-07T17:37:33Z")
> [@Terr](#): > > No, because it was struck down. As I said, a judge can invalidate a law. But cannot create a new law. What new law have the judges enacted? ---
**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, 5:38pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/75 "2015-09-07T17:38:17Z")
> [@Muffin](#): > > The law disgrees with you, Terr: > > [http://www.lrc.ky.gov/Statutes/statute.aspx?id=36475](http://www.lrc.ky.gov/Statutes/statute.aspx?id=36475) That allows the deputy clerk to sign things but not against the express instructions of the clerk. Otherwise having a clerk who has authority over the deputies has no meaning whatsoever. ---
**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, 5:40pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/76 "2015-09-07T17:40:18Z")
> [@Smapti](#): > > What new law have the judges enacted? None. Because they cannot. Thus if the old law is not followed (and note that the old law in question does not relate to SSM marriages specifically, but to all marriage licenses), the licenses are invalid. ---
**Author:** ![purplehearingaid](https://avatars.discourse-cdn.com/v4/letter/p/7bcc69/32.png) [@purplehearingaid](https://boards.straightdope.com/u/purplehearingaid)\ **Post date:** [September 7, 2015, 5:40pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/77 "2015-09-07T17:40:49Z")
[http://www.kentucky.com/2015/09/04/4019876\_live-updates-county-clerk-continues.html?rh=1](http://www.kentucky.com/2015/09/04/4019876_live-updates-county-clerk-continues.html?rh=1) Same-sex couples issued marriage licenses in Rowan County; jailed clerk claims licenses are void By John Cheves After weeks of resistance against issuing marriage licenses to gay couples, county clerk Kim Davis was held in contempt of court and ordered to jail. The first gay couple was then issued a marriage license by Davis’ coworkers in Rowan County, Kentucky on Friday. Nicole L. Cvetnic and Lexington Herald-Leader [KENTUCKY.COM](http://KENTUCKY.COM) Related Stories: In Rowan County, a sentiment that ‘this community has suffered from the controversy’ Coverage of Rowan County clerk ruling •Hundreds of Kim Davis supporters rally in Grayson: Video | Photo gallery •Same-sex couples issued marriage licenses in Rowan County; jailed clerk claims licenses are void •Judge jails Rowan clerk for contempt; 5 deputies pledge to issue marriage licenses Friday morning •Photo galleries of the scene at the courthouse: 1, 2 •Hundreds yell, chant and preach outside courthouse where marriage license case unfolds •Politicians and advocates react to jailing of Rowan County Clerk Kim Davis •Video: Couples who sued Rowan County Clerk react to ruling •Video of crowd reacting to Davis’ jailing: 1, 2 MOREHEAD — James Yates and William Smith Jr. paid $35.50 and filled out paperwork early Friday to become the first couple to get a marriage license in Rowan County since the U.S. Supreme Court legalized same-sex marriage June 26. More couples soon followed. _Snip for copyright reasons._ “The portrayal of our community from all of this has not been entirely flattering, frankly,” Blevins said. “We’d rather be known for our beauty and Cave Run Lake and our university, not for this.” “If Kim will just agree to come back and do her duty, then she would get out of jail,” Blevins said. “The keys to her cell are in her own hands. But I don’t think she’s going to back down.” John Cheves: (859) 231-3266. Twitter: @BGPolitics. Blog: [bluegrasspolitics.bloginky.com](http://bluegrasspolitics.bloginky.com) AP Read more here: [http://www.kentucky.com/2015/09/04/4019876\_live-updates-county-clerk-continues.html?rh=1#storylink=cpy](http://www.kentucky.com/2015/09/04/4019876_live-updates-county-clerk-continues.html?rh=1#storylink=cpy) ---
**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 7, 2015, 5:41pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/78 "2015-09-07T17:41:04Z")
> [@Terr](#): > > It is absurd to claim that, when the law says “The license shall be issued by the clerk of the county”, the clerk’s deputies can issue licenses against the clerk’s express instructions. You missed out the operative term _ **illegal** _, as in _against the clerk’s express **illegal** instructions_. \*Illegal \*commands have no force in 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, 5:42pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/79 "2015-09-07T17:42:51Z")
> [@Terr](#): > > None. Because they cannot. Exactly. It is not _necessary_ to create a new law to enable same-sex couples in Rowan county to exercise their right to marry, because it is already guaranteed by the Constitution of the United States. ---
**Author:** ![Kolak\_of\_Twilo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kolak_of_twilo/32/73_2.png) [@Kolak\_of\_Twilo](https://boards.straightdope.com/u/Kolak_of_Twilo)\ **Post date:** [September 7, 2015, 5:43pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/80 "2015-09-07T17:43:25Z")
> [@Terr](#): > > None. Because they cannot. Thus if the old law is not followed (and note that the old law in question does not relate to SSM marriages specifically, but to all marriage licenses), the licenses are invalid. Good luck finding a court that will rule that way. 😃 [Previous page](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227.md?page=3) [Next page](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227.md?page=5)