# 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:** 5
**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, 5:44pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/81 "2015-09-07T17:44:02Z")
> [@Smapti](#): > > 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. The marriage licenses are not issued under the federal law or the Constitution. They are issued under state 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, 5:45pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/82 "2015-09-07T17:45:21Z")
> [@Terr](#): > > The marriage licenses are not issued under the federal law or the Constitution. They are issued under state law. And state law is, in all cases, in all matters, and in every regard, subordinate to the Constitution of the United States, which states that the right to marry may not be denied on the basis of gender. Is any of this getting through to you? ---
**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, 5:45pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/83 "2015-09-07T17:45:39Z")
> [@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. I trust that you posted before reading my post immediately above yours that cites the Kentucky law that specifically authorizes deputy clerks to sign marriage licenses, and that now having had the opportunity to review the legislation, you acknowledge that the deputy clerk-signed marriage licenses are valid. ---
**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, 5:47pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/84 "2015-09-07T17:47:35Z")
> [@Terr](#): > > The marriage licenses are not issued under the federal law or the Constitution. They are issued under state law. And Kentucky state law says that deputy clerks can issue marriage licenses or perform other ministerial functions. Do you have a cite that says a clerk can issue binding orders to her deputies forbidding them from doing so? ---
**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, 5:49pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/85 "2015-09-07T17:49:10Z")
> [@Terr](#): > > 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. What law do you think backs up this assertion? ---
**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, 5:50pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/86 "2015-09-07T17:50:43Z")
> [@Muffin](#): > > I trust that you posted before reading my post immediately above yours that cites the Kentucky law that specifically authorizes deputy clerks to sign marriage licenses Not if the clerk (who has authority over deputy clerks) expressly forbids it. ---
**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, 5:53pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/87 "2015-09-07T17:53:58Z")
> [@Terr](#): > > Not if the clerk (who has authority over deputy clerks) expressly forbids it. What law do you base that assertion on? ---
**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, 5:54pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/88 "2015-09-07T17:54:23Z")
> [@Terr](#): > > Not if the clerk (who has authority over deputy clerks) expressly forbids it. Where does Kentucky law authorize a county clerk to give their deputies a binding order to break the law or disobey a federal court order? ---
**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, 5:56pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/89 "2015-09-07T17:56:01Z")
> [@Terr](#): > > Not if the clerk (who has authority over deputy clerks) expressly forbids it. Please cite the relevant statute. Again, here’s how it works: -Clerk is elected. -Clerk gets deputies. -DEPUTIES ARE IMMEDIATELY BY STATUTE AUTHORIZED TO DO WHATEVER THE CLERK MAY DO. The statute I cited contains no exceptions. It doesn’t say, “deputies are authorized to do whatever the clerk may do, **unless the clerk tells them not to**.” > [@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 think that’s absurd. But let’s be clear: you’re just saying you think the current legal setup is absurd. If you think there should be such an exception built into statute, you need to lobby for a change to the law. Just because you think the law is poorly written doesn’t change the clear language 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, 5:57pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/90 "2015-09-07T17:57:41Z")
> [@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. So if a state statute gives discretion to an official to do some administrative act, then the official can continue to perform those administrative acts in unconstitutional ways until that person is removed from office. Again, am I misstating your position here in any way? How about another hypothetical. The UCMJ prohibits torture. If a National Guardman is called to state duty - not Federal duty - to suppress a riot or something, can he order his troops to torture looters? The Guardsman is acting purely in a non-Federal role in this scenario. ---
**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, 5:57pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/91 "2015-09-07T17:57:49Z")
> [@Terr](#): > > Not if the clerk (who has authority over deputy clerks) expressly forbids it. Elected DA to Assistant DA: “Don’t prosecute that drunk driver.” Assistant DA: “I’m going to.” (and does so successfully. There is a valid charging document, a jury trial, a verdict, etc.) Drunk driver: “I’m not convicted of a crime. The prosecutor wasn’t listening to his boss when he prosecuted me.” The Court system: “tough shit, drunk driving guy” The DA can fire the ADA, but the drunk driver is still guilty as established in court. Here, the county issued marriage licenses. Maybe they had authority, maybe they didn’t (hint, they did). Either way, it’s a done deal. ---
**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, 5:57pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/92 "2015-09-07T17:57:54Z")
Terr, if a clerk told a deputy to shoot a person who was applying for a marriage license, do you think the clerk would be obliged to break the law? I’m hoping you’d say _no_ because the clerk did not have the authority to command a deputy to commit an illegal act. Well swap out “shoot a person” for “deny a person” and you logically must come to the same conclusion, that no, the deputy would not be obliged to break the law by refusing to issue a marriage license because the clerk did not have the authority to command the deputy to commit an illegal act. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [September 7, 2015, 6:08pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/93 "2015-09-07T18:08:29Z")
> [@Terr](#): > > 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. Where is the text that indicates that the deputy must have express permission from the clerk to issue the licenses? I think that the fact that the clerk is absent for the express purpose of violating the law has a bearing on the matter. ---
**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, 6:15pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/94 "2015-09-07T18:15:39Z")
> [@tomndebb](#): > > I think that the fact that the clerk is absent for the express purpose of violating the law has a bearing on the matter. From a purely textual standpoint, I don’t think it does. If the clerk was shouting, “DON’T ISSUE THAT MARRIAGE LICENSE!” and lunging for the pen, and the deputy managed to issue the license and hand it to the citizen, I see nothing in the language of the law that would invalidate the license. From a standpoint of being reasonable, of not being “absurd,” as Terr puts it, yeah, you’re absolutely right. Terr wants to be super-technical in one way, and reasonable in another way, as long as it benefits his claim. ---
**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, 6:22pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/95 "2015-09-07T18:22:21Z")
Technically, that’s reasonable. ---
**Author:** ![Clothahump](https://avatars.discourse-cdn.com/v4/letter/c/51bf81/32.png) [@Clothahump](https://boards.straightdope.com/u/Clothahump)\ **Post date:** [September 7, 2015, 6:23pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/96 "2015-09-07T18:23:29Z")
> [@Terr](#): > > 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. Of course they have the authority. A deputy acts on the behalf of the primary, such as a deputy sheriff. deputy [dep-yuh-tee] noun, plural deputies. 1. a person appointed or authorized to act as a substitute for another or others. 2. deputy sheriff. 3. a person appointed or elected as assistant to a public official, serving as successor in the event of a vacancy. ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [September 7, 2015, 6:50pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/97 "2015-09-07T18:50:50Z")
> [@Terr](#): > > Gotta love the “what the hell are you going to do about it?” argument. Who cares about that “nation of laws” concept. Let’s just do what we think is right no matter what the law says. Some people only care about the “nation of laws” concept when it helps their political agenda, as in this case. Not so much in other, even similar, cases. The political left wasn’t concerned about the “rule of law” when Gavin Newsom instructed his city clerk(s) to issue marriage licenses in violation of California law at the time. But now Kim Davis ABSOLUTELY MUST follow the law. :dubious: ---
**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, 6:50pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/98 "2015-09-07T18:50:57Z")
> [@Left\_Hand\_of\_Dorkness](#): > > -Clerk is elected. > -Clerk gets deputies. > -DEPUTIES ARE IMMEDIATELY BY STATUTE AUTHORIZED TO DO WHATEVER THE CLERK MAY DO. Again, that makes no sense. If deputies can do whatever the clerk may do, with no regard to the clerk, what’s the point of having a clerk? ---
**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, 6:52pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/99 "2015-09-07T18:52:39Z")
> [@Muffin](#): > > Terr, if a clerk told a deputy to shoot a person who was applying for a marriage license, do you think the clerk would be obliged to break the law? There is a difference between telling someone to do something, and telling someone not to do something. ---
**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, 6:53pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/100 "2015-09-07T18:53:15Z")
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