# 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:** 8
**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, 8:16pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/141 "2015-09-07T20:16:18Z")
> [@Alan\_Smithee](#): > > 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. . . . One example is prison overcrowding cases, where judges can tell states, “Reduce your prison population.” That’s effectively a new law. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [September 7, 2015, 8:18pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/142 "2015-09-07T20:18:44Z")
Watching the homobigots sputter with their impotent tears is quite amusing for me. Anyway, here’s a link to what appears to be the original order from the district court. It contains a full analysis of Kentucky law, and the Rowan county attorney was at the original hearing, so he would have had opportunity to dispute this analysis if it was incorrect. [https://www.liberty.edu/media/9980/attachments/2015/081215\_-\_Order\_-\_Granting\_PI.pdf](https://www.liberty.edu/media/9980/attachments/2015/081215_-_Order_-_Granting_PI.pdf) ---
**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, 8:22pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/143 "2015-09-07T20:22:49Z")
> [@Terr](#): > > Yes, unless explicitly forbidden to do so by the county clerk who’s their boss. Even if true, that’s between the deputy clerks and their boss. The rest of the world can rely on a license issued by “the county clerk’s office.” You may be interested to learn that Kentucky doesn’t invalidate a marriage for stupid technical reasons, even if the person who performs the ceremony turns out to be lacking “authority” to do so: > [@](#): > > KRS 402.070 provides that no marriage solemnized before any person professing to have authority to perform marriages shall be invalid for the want of such authority if the marriage is consummated with the belief of the parties, or either of them, that the person performing the marriage had the authority and that they have been lawfully married. See Arthurs v. Johnson, Ky, 280 S.W.2d 504, 505 (1955). ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [September 7, 2015, 8:25pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/144 "2015-09-07T20:25:04Z")
> [@Terr](#): > > [http://www.lrc.ky.gov/statutes/statute.aspx?id=36473](http://www.lrc.ky.gov/statutes/statute.aspx?id=36473) > > No marriage shall be solemnized without a license therefor. The license shall be issued **by the clerk of the county** in which the female resides at the time, unless the female is eighteen (18) years of age or over or a widow, and the license is issued on her application in person or by writing signed by her, in which case it may be issued by any county clerk. That “unless” covers most marriages. I don’t understand what you’re saying. ---
**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, 8:26pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/145 "2015-09-07T20:26:14Z")
> [@](#): > > …Davis insists that her policy poses only an incidental burden on Plaintiffs’ right to marry, which is justified by the need to protect her own free exercise rights… (From above citation) Being a boor of little brain, I am guessing at this, but it seems to me that her lawyer is being cute all of a sudden, implying that the burden for going to a different county to get their license is a trivial matter, and therefore she gets a pass because her God is more important than their convenience. ---
**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, 8:26pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/146 "2015-09-07T20:26:21Z")
> [@BrightNShiny](#): > > Watching the homobigots sputter with their impotent tears is quite amusing for me. In the context of this thread, that comment is not appropriate. EVERYONE refrain from dragging comments on bigotry or similar insults into this discussion. [/Moderating] ---
**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, 8:27pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/147 "2015-09-07T20:27:21Z")
> [@Terr](#): > > Yes, unless explicitly forbidden to do so by the county clerk who’s their boss. Where do you find that exception? Is it just because the law is stupid without it? Because if we’re going to that level of analysis, the law is stupid if it allows a county clerk to deny citizens rights that the Supreme Court says they have. Honestly, despite **Danconia’s** desperate and pathetic attempt to find liberal hypocrisy, I’m generally pretty happy with that level of analysis: we should interpret laws generously in order to increase rights for folks. But in this case, a generous reading leads to exactly the same conclusion as a strict reading. A generous reading says, “Stupid bigot can’t block equal rights, let’s find a way to get those marriage licenses to same-sex couples.” A strict reading says, “Stupid bigot can’t overrule Supreme Court, her deputies are authorized to do what she’s authorized to do as long as they remain deputies, with no exception in the law for her attempt to override those duties. Let them issue those marriage licenses to same-sex couples.” So I’m happy in this case for either a generous analysis or a strict analysis. The only way to get to Terr’s desired outcome is to say, “Let’s read one law technically, but let’s read another law loosely, because the first law read in isolation technically appears to deny people’s rights, but if we read that one technically and the other one technically, we have to give them rights, so read the second one loosely because we don’t like that outcome.” I’m not impressed with that kind of legal analysis. ---
**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, 8:42pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/148 "2015-09-07T20:42:46Z")
> [@Terr](#): > > No, because it was struck down. As I said, a judge can invalidate a law. But cannot create a new law. Please cite your authority on this. Here, let me help you with a bit of background. In common law jurisdictions, both legislative bodies and judges create laws. Statute laws are created by legislative bodies. Common laws are created by judges. When a jurisdiction uses both statute law and common law, it is referred to as a common law jurisdiction. Here is a list of common law jurisdictions, including Kentucky, with which you might have some familiarity: [ul] [li]Federal: United States of America[/li][li]State: Alabama [/li][li]State: Alaska [/li][li]State: Arizona [/li][li]State: Arkansas [/li][li]State: California [/li][li]State: Colorado [/li][li]State: Connecticut [/li][li]State: Delaware [/li][li]State: Florida [/li][li]State: Georgia [/li][li]State: Hawaii [/li][li]State: Idaho [/li][li]State: Illinois[/li][li]State: Indiana [/li][li]State: Iowa [/li][li]State: Kansas [/li][li]State: Kentucky[/li][li]State: Maine [/li][li]State: Maryland [/li][li]State: Massachusetts [/li][li]State: Michigan [/li][li]State: Minnesota [/li][li]State: Mississippi [/li][li]State: Missouri [/li][li]State: Montana[/li][li]State: Nebraska [/li][li]State: Nevada [/li][li]State: New Hampshire [/li][li]State: New Jersey [/li][li]State: New Mexico [/li][li]State: New York [/li][li]State: North Carolina [/li][li]State: North Dakota [/li][li]State: Ohio [/li][li]State: Oklahoma [/li][li]State: Oregon [/li][li]State: Pennsylvania[/li][li]State: Rhode Island [/li][li]State: South Carolina [/li][li]State: South Dakota [/li][li]State: Tennessee [/li][li]State: Texas [/li][li]State: Utah [/li][li]State: Vermont [/li][li]State: Virginia [/li][li]State: Washington [/li][li]State: West Virginia [/li][li]State: Wisconsin [/li][li]State: Wyoming[/li][/ul] In civil law jurisdictions, legislative bodies create laws and judges interpret them, without creating new law. Here is the only civil law jurisdiction in the USA with which you might have some familiarity: [ul] [li]State: Louisiana[/li][/ul] Now would you tell me please, in your opinion, yes or no, is Kentucky a common law jurisdiction? (Hint – it might be in the long list.) I think that you are confusing the legal fiction of judges “finding” law in existing law, no matter how remote and tenuous the connection might be (e.g. finding law in unwritten law and ancient customs), and of the policy of judges usually preferring to defer to legislative bodies when dealing with new issues that are not repugnant to existing law, with the simple fact that yes, judges make laws in common law jurisdictions. They take statute law, common law, equity, public policy, academic legal authorities, and sometimes even foreign law, roll it about together, and create new law. It’s their job. It’s what they do. Regarding same sex marriage, the Supreme Court of the United States, being the highest level of court in one of the world’s larger common law jurisdictions, created new law that now permits same sex couple to marry when previously they were not allowed to marry. Now would you tell me please, in your opinion, yes or no, did the Supreme Court of the United States have the authority to make this new that that permits same sex couple to marry when previously they were not allowed to marry? ---
**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, 8:47pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/149 "2015-09-07T20:47:57Z")
> [@Terr](#): > > Yes, unless explicitly forbidden to do so by the county clerk who’s their boss. Please provide the law to support this statement. Specifically, please provide the law that permits a Kentucky county clerk to forbid a Kentucky deputy from issuing a marriage license in which the deputy is authorized by law to do so, and the application for the marriage license has been properly made. I have already cited for you the law law that permits the clerk to sign the marriage license and I have already cited for you the law that compels the clerk to sign the marriage license and prohibits the clerk from prohibiting the deputy from issuing the marriage license, so it is about time you get down to brass tacks and come up with cites for your assertions. ---
**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, 8:48pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/150 "2015-09-07T20:48:02Z")
> [@BrightNShiny](#): > > Anyway, here’s a link to what appears to be the original order from the district court. It contains a full analysis of Kentucky law, and the Rowan county attorney was at the original hearing, so he would have had opportunity to dispute this analysis if it was incorrect. > > [https://www.liberty.edu/media/9980/attachments/2015/081215\_-\_Order\_-\_Granting\_PI.pdf](https://www.liberty.edu/media/9980/attachments/2015/081215_-_Order_-_Granting_PI.pdf) Thanks for posting that link. ---
**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, 8:52pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/151 "2015-09-07T20:52:37Z")
> [@Trinopus](#): > > 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. True enough. In the marriage context, when parties try to get divorced, sometimes a typo in the marriage license will be ignored by the judge, and sometimes the judge will require sworn/affirmed affidavit/testimony as to it only being a typo, but one thing is certain – fluff will not stop the court. ---
**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, 8:59pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/152 "2015-09-07T20:59:42Z")
Kentucky description of Deputy Clerk duties: [30A.050 Number and qualifications of deputy clerks and employees – Power of deputy clerks – Compensation.](http://www.lrc.ky.gov/statutes/statute.aspx?id=21179) Nothing about acting only at the behest of the Clerk. Oath of Office [30A.020 Oath of clerk and deputies.](http://www.lrc.ky.gov/statutes/statute.aspx?id=21176) They must promise to not violate the law with no word about obeying (illegal) orders from the Clerk. ---
**Author:** ![Ambrosio\_Spinola](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Ambrosio\_Spinola](https://boards.straightdope.com/u/Ambrosio_Spinola)\ **Post date:** [September 7, 2015, 9:13pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/153 "2015-09-07T21:13:41Z")
> [@D\_Anconia](#): > > 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. Amusingly enough, you know who was there defending the rule of law from that rogue Newsom? [Liberty Counsel](http://www.patheos.com/blogs/friendlyatheist/2015/09/05/should-elected-officials-have-to-obey-the-law-liberty-counsel-cant-decide/), Kim Davis’ attorneys, that’s who! Only then they were arguing that clerks and so forth had no discretion in performing purely ministerial tasks and that their consciences had no place in the matter. Apparently they’ve changed their minds since. I’d also challenge that the “political left” came out in support of Newsom et. al. violating the law. I mean, I’ve supported SSM for a long time, and I never thought that stunts like that would or should hold up. ---
**Author:** ![Grotonian](https://avatars.discourse-cdn.com/v4/letter/g/c2a13f/32.png) [@Grotonian](https://boards.straightdope.com/u/Grotonian)\ **Post date:** [September 7, 2015, 9:40pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/154 "2015-09-07T21:40:13Z")
> [@Muffin](#): > > 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. Except the Deputies DID NOT SIGN the licenses, and that is problematic. Deputies may very well have the authority to SIGN the licenses, but the deputies DID NOT SIGN them; they wrote in the name of the county. Those licenses ARE NOT SIGNED by anyone, clerk OR deputy clerk, who holds legal authority to do so. I do not buy the legal argument that ONLY the clerk may exercise the county’s authority. However, the documents, under Kentucky law, are supposed to bear the SIGNATURE of some PERSON with the authority to do so. God damn, you all are acting like **Terr** supports the clerk. I don’t read the OP that way; it just seems like an interesting legal conundrum. I can tell you, if my visa to Cuba is clearly marked that it must be SIGNED by someone in the State Department, I don’t want some deputy to have scribbled in “Department of State” instead on the signature line. ---
**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, 9:41pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/155 "2015-09-07T21:41:50Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Where do you find that exception? Is it just because the law is stupid without it? That was good enough for Obamacare decision, wasn’t it? ---
**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, 9:43pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/156 "2015-09-07T21:43:36Z")
> [@tomndebb](#): > > Kentucky description of Deputy Clerk duties: > [30A.050 Number and qualifications of deputy clerks and employees – Power of > deputy clerks – Compensation.](http://www.lrc.ky.gov/statutes/statute.aspx?id=21179) > Nothing about acting only at the behest of the Clerk. 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. ---
**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, 9:45pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/157 "2015-09-07T21:45:14Z")
> [@Grotonian](#): > > Except the Deputies DID NOT SIGN the licenses, and that is problematic. Deputies may very well have the authority to SIGN the licenses, but the deputies DID NOT SIGN them; they wrote in the name of the county. Those licenses ARE NOT SIGNED by anyone, clerk OR deputy clerk, who holds legal authority to do so. > > I do not buy the legal argument that ONLY the clerk may exercise the county’s authority. However, the documents, under Kentucky law, are supposed to bear the SIGNATURE of some PERSON with the authority to do so. No one cares, and it doesn’t matter. 90% of the time my “signature” is typed as follows: s/Procrustus. If the country accepts these licenses after the marriage ceremony (and I assume they will), then they are filed and part of the State records. ---
**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, 9:45pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/158 "2015-09-07T21:45:22Z")
> [@Terr](#): > > That was good enough for Obamacare decision, wasn’t it? Yes–for the sort of generous interpretation of the law that I advocate. You’re the one calling for a hypertechnical ultra-strict reading of the law in the OP. Are you willing to abandon that call, and simply interpret the law in a generous way that leads to the appropriate legal outcome? If so, you can go ahead and concede the entire argument. If you’re unwilling to abandon this ultra-strict legal reading, you can go ahead and concede that the deputies acted appropriately. ---
**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, 9:45pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/159 "2015-09-07T21:45:39Z")
> [@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. “Authorized by and under the direction of” meaning, in a legal sense, that they have been hired as deputy clerks. What part of this is difficult for you to understand? ---
**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, 9:46pm UTC](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227/160 "2015-09-07T21:46:24Z")
> [@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. You bolded the first part, but not the part I underlined. Why do you persist in ignoring this second part? [Previous page](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227.md?page=7) [Next page](https://boards.straightdope.com/t/according-to-ky-law-the-same-sex-marriage-licenses/730227.md?page=9)