# 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:** 7
**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, 7:33pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/121 "2015-09-07T19:33:16Z")
> [@Muffin](#): > > She would be charged and convicted for [official misconduct in the first degree](http://www.lrc.ky.gov/statutes/statute.aspx?id=19888) (a.k.a. abuse of public office in the first degree). So? She already can be charged with that just for refusing to grant the licenses in the first place. That would be due process. Doesn’t mean that the licenses _in that county_ can be issued without her say so - until she is removed from office. ---
**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, 7:35pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/122 "2015-09-07T19:35:04Z")
> [@Terr](#): > > Doesn’t mean that the licenses _in that county_ can be issued without her say so - until she is removed from office. Why do you insist on ignoring the fact, which has been repeatedly demonstrated in this thread, that deputy clerks in Kentucky do not need the clerk’s permission to issue a marriage license, and cannot be compelled to follow an unlawful order? ---
**Author:** ![hajario](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hajario/32/171_2.png) [@hajario](https://boards.straightdope.com/u/hajario)\ **Post date:** [September 7, 2015, 7:35pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/123 "2015-09-07T19:35:43Z")
> [@Terr](#): > > So? She already can be charged with that just for refusing to grant the licenses in the first place. That would be due process. Doesn’t mean that the licenses _in that county_ can be issued without her say so - until she is removed from office. Yes it does. A Federal judge said so as well at other justices all the way up to the Supreme Court. ---
**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, 7:37pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/124 "2015-09-07T19:37:49Z")
Terr, her job includes issuing licences, so if she refuses to do it – refuses to do her job – specifically to deprive same sex couples, then she has committed an offence, regardless of deputies taking up the slack and issuing them. Please read the statute that I cited for you. And Terr, please don’t try to weasel based on the statute saying him rather than her. ---
**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 7, 2015, 7:37pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/125 "2015-09-07T19:37:55Z")
> [@Terr](#): > > No, because it was struck down. As I said, a judge can invalidate a law. But cannot create a new law. Besides all your other errors, you keep making this one. You are wrong. A judge cannot create a new statute, but a judge absolutely can, and must, create new laws that add to, modify, override, or supersede statutory laws. This is a fundamental component of our legal system, and has been since before the founding of the Republic. The Supreme Court has ruled that same sex couples can marry in Kentucky (and the rest of the country). They did not order state legislatures to pass laws saying it, they simply ruled it, and that ruling is immediately part of the law and is binding in Kentucky. Even if we accept **Terr’s** claim that Kentucky law as it stands in light of that ruling has no provision by which a gay couple in Rowan County can be married, that doesn’t mean that everything stops until the state legislature or Kim Davis herself decide to do something. The law NOW says that gay couples in Rowan County can get married NOW. If the law is incomplete or contradictory in failing to set out a means for that to happen, then it is absolutely the duty of a judge to issue rulings creating new case law that spells it out (which can later be overridden by statute, as long as the new statute abides by the Supreme Court’s ruling). ---
**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, 7:42pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/126 "2015-09-07T19:42:50Z")
> [@hajario](#): > > Yes it does. A Federal judge said so as well at other justices all the way up to the Supreme Court. The federal judge also said that he has no idea whether the licenses issued under his orders are valid or not. ---
**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, 7:45pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/127 "2015-09-07T19:45:05Z")
> [@Terr](#): > > The federal judge also said that he has no idea whether the licenses issued under his orders are valid or not. And by default, that means that they _are_ valid. I invite you to approach the bench and argue that these lawful marriages contracted by consenting adults in good faith in accordance with their Constitutionally-guaranteed rights should be annulled because of a bureaucratic miscommunication. ---
**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, 7:45pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/128 "2015-09-07T19:45:20Z")
> [@Alan\_Smithee](#): > > The Supreme Court has ruled that same sex couples can marry in Kentucky (and the rest of the country). They did not order state legislatures to pass laws saying it, they simply ruled it, and that ruling is immediately part of the law and is binding in Kentucky. That’s not new law. That is striking down old law. > [@](#): > > Even if we accept **Terr’s** claim that Kentucky law as it stands in light of that ruling has no provision by which a gay couple in Rowan County can be married The law in question says nothing about gay couples. It says who is authorized to issue the licenses. ---
**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, 7:45pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/129 "2015-09-07T19:45:50Z")
> [@Terr](#): > > How? She is still the county clerk. She can sign the order to fire them and pass it through her attorney. There is nothing that requires she do this in person. Being in jail is a legal disability in the Commonwealth of Kentucky. Although I’m not finding any cases on point, I believe this would render any order she signs null and void. (This would be similar in fact pattern to Hayes & Carter v. Hayes (Ky. Ct. of Appeals PDF): Mrs. Hayes wanted to divorce Mr. Hayes, and because he was in jail awaiting trial, a guardian ad litem had to be appointed for him.) ---
**Author:** ![hajario](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hajario/32/171_2.png) [@hajario](https://boards.straightdope.com/u/hajario)\ **Post date:** [September 7, 2015, 7:48pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/130 "2015-09-07T19:48:26Z")
> [@Terr](#): > > The federal judge also said that he has no idea whether the licenses issued under his orders are valid or not. He meant that he wasn’t ruling on that one way or the other. ---
**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 7, 2015, 7:52pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/131 "2015-09-07T19:52:20Z")
> [@Terr](#): > > That’s not new law. That is striking down old law. Nope. The Court ruled that same-sex couples have a Constitutional right to marry. That is an affirmative statement that gives all same-sex couples the ability to marry anywhere in the country regardless of the previous law in any state. Even if a hypothetical state had no statutes covering marriage at all, previous court rulings would have created laws governing marriage in those states, and this ruling would extend it to same-sex couples. ---
**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, 7:54pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/132 "2015-09-07T19:54:03Z")
> [@Terr](#): > > The federal judge also said that he has no idea whether the licenses issued under his orders are valid or not. That is because the issue had not be argued before that judge, so the judge did not have to give a decision on the issue, and wisely chose not give an opinion on a matter that had not been brought before him but might very well end up tangled up in the matter that had been brought before him. That being said, you are studiously ignoring the black and white statute law of Kentucky that says in very clear terms that deputies have the authority to sign marriages licences. Yes or no, Terr, in your opinion based on your reading of the Kentucky statutes, do the deputies have the authority to issue marriage licences? If no, please cite the statutory and case law authorities that support your opinion – not Faux News or Weekly World News or such claptrap – please cite actual authorities in law. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [September 7, 2015, 7:56pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/133 "2015-09-07T19:56:45Z")
> [@Procrustus](#): > > . . . (“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. It makes me think of those weirdos who claim that the 16th Amendment is invalid, because the documents sent around to all the individual states for them to ratify were not exactly the same, down to the last comma. Since 3/4 of the states (at that time) ratified different versions of the Amendment, the Amendment must be invalid. But this is only convincing to comma-counters who don’t comprehend pre-Information-Age levels of documentary consistency. If a Kentucky marriage license has a typo in it – maybe mine has me down as Trinopis – no court is going to invalidate my marriage, my will, or my estate solely on that basis. ---
**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, 7:59pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/134 "2015-09-07T19:59:45Z")
> [@D\_Anconia](#): > > 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: Not at all. If she finds that, for whatever reason and whatever time, her obligations to her official position are in conflict with her religious convictions, she may dispense with whichever she chooses. Or she can shrug her shoulders and say “Fuck it, no big thing, life goes on.” She can shit, or go bowling. ---
**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, 8:00pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/135 "2015-09-07T20:00:27Z")
**Terr** , Kentucky has various statutes prohibiting certain types of marriages - principally marriages involving kids under the age of consent or people within a certain bloodline. Beyond those limitations, do you believe the clerk has the legal authority to order subordinates not to issue marriage licenses for situations that are not prohibited by statute? As in, can a Kentucky clerk forbid her staff from issuing a license to Jews? And that if the staff follow this plainly unconstitutional and illegal order, for which there is no legal justification, that any such licenses are void? Do administrative officials of states, in your view, have total discretion to make their administrative decisions based upon criteria that have no legal basis? Can construction permitting officials simply decide not to issue permits to Muslims? And if the permitting clerk is required by a judge, and even jailed, for such decisions, his staff is obligated to continue carrying out illegal orders? ETA: do you assert that administrative officials can make up their own rules on a whim, disregard state law, and that everyone under such officials are bound to carry out illegal orders? ---
**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, 8:00pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/136 "2015-09-07T20:00:31Z")
> [@Muffin](#): > > Yes or no, Terr, in your opinion based on your reading of the Kentucky statutes, do the deputies have the authority to issue marriage licences? Yes, unless explicitly forbidden to do so by the county clerk who’s their boss. ---
**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 7, 2015, 8:03pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/137 "2015-09-07T20:03:48Z")
> [@Terr](#): > > The law in question says nothing about gay couples. It says who is authorized to issue the licenses. Actually, it doesn’t. It says that the County Clerk is required to issue the license, but it doesn’t limit the authority to do so only to the County Clerk, and in fact the statute quoted to you many time explicitly extends that authority to Deputy Clerks. It also doesn’t spell out conditions of validity for a license or state that only licenses issued according to that law are valid. Nor does it affect the validity of a marriage certificate issued on the basis of an invalid license. I don’t know if Kentucky has laws spelling these things out, but case law in most jurisdictions is that any marriage arrangement entered into in good faith by consenting adults is considered valid. ---
**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, 8:03pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/138 "2015-09-07T20:03:52Z")
> [@Terr](#): > > 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? This is disingenuous in the extreme. There is always a boss in any situation. There is a clerk because the state has stipulated that there must be a clerk in every county. In a county with few enough people (and fewer responsibilities as would have occurred in the nineteenth century), there need be only the one clerk. As populations and responsibilities have increased, the state has authorized the hiring of deputies to carry out certain functions of the clerk so that the clerk does not have to work a 168 hour week. That the deputies are authorized to carry out a certain number of bureaucratic functions does not mean that there is no need for a clerk to handle other responsibilities. > [@Terr](#): > > > [@tomndebb](#): > > > > Where is the text that indicates that the deputy must have express permission from the clerk to issue the licenses? > > There is a difference between not being expressly permitted and being expressly forbidden to do something. Right? So what? The depties are authorized, by law, not by the clerk, to carry out certain duties. If the clerk, in violation of the law, forbids the deputies from carrying out their authorized responsibilities, the deputies have no obligation to violate the law on the clerk’s say-so. ---
**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, 8:05pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/139 "2015-09-07T20:05:56Z")
> [@Terr](#): > > Yes, unless explicitly forbidden to do so by the county clerk who’s their boss. You can quote the passage of law that gives the clerk that authority? ---
**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, 8:09pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/140 "2015-09-07T20:09:02Z")
> [@Terr](#): > > Yes, unless explicitly forbidden to do so by the county clerk who’s their boss. Do you really believe that the law requires deputy clerks to follow unlawful orders of the county clerk? [Previous page](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227.md?page=6) [Next page](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227.md?page=8)