Marriage licenses altered last summer by Rowan County Clerk Kim Davisdon’t meet the state’s legal requirements, but they should be considered valid, lawyers for Gov. Steve Beshear told a federal judge Friday.
Davis, who opposes same-sex marriage for religious reasons, changed the wording of state-issued license forms in September to remove her name and the name of Rowan County. She also told her deputies to sign the licenses as notaries public, not as deputy county clerks. The licenses now state, “Pursuant to federal court order,” referring to the order that U.S. District Judge David Bunning gave Davis to resume issuing marriage licenses after her two-month boycott.
Kentucky law favors marriage, and the presumption of the legality of a marriage is one of the strongest known to the law.
Palmer Vance II
Bunning asked Beshear last month whether the rewritten licenses are valid under state law. They’re good enough, Beshear’s lawyers said in a written response.
“While the altered licenses issued by the Rowan County clerk’s office do not fully comply with the statute, such deviation does not necessarily render the licenses ineffective or the marriages solemnized pursuant to said licenses invalid,” wrote Palmer Vance II, who represents Beshear in a lawsuit filed against Davis last summer by Rowan County couples seeking marriage licenses.
State law requires marriage licenses to include the name of the county clerk and the county where they were issued, Vance wrote. However, as a practical matter, Kentucky courts recognize marriages as legitimate when couples go through the licensing and ceremonies in good faith, even if an official makes a procedural error along the way, he wrote.
“Kentucky law favors marriage, and the presumption of the legality of a marriage is one of the strongest known to the law,” Vance wrote.
Davis initially refused to issue marriage licenses to any couples after the U.S. Supreme Court legalized same-sex marriage in June.
The couples suing Davis have asked Bunning to order the clerk to return her office’s marriage licenses to their original format. They argue that Davis has created “a two-tier system of marriage licenses” that “effectively feature a stamp of animus” toward gay, lesbian and transgender couples.
Bunning has not yet responded to the couples’ request. In September, he sent Davis to jail for contempt of court because she disobeyed his order to resume issuing marriage licenses. He released her after five days after one of her deputies, Brian Mason, agreed to issue licenses in her place. As a condition of her release, Bunning ordered Davis to not interfere with her deputies assisting betrothed couples.
Political change might make the lawsuit irrelevant, at least in part. Republican Governor-elect Matt Bevin has said he will issue an order removing county clerks’ names from all state-issued marriage licenses when he takes office in December. Also, the General Assembly is expected this winter to consider “religious liberty” legislation that either allows clerks to not issue licenses if they object on religious grounds, as Davis does, or that shifts the marriage-licensing process to a state agency.
“In light of Gov. Beshear’s response and the impending executive order of Governor-elect Matt Bevin, there is no reason for Judge Bunning to act at this time,” Mat Staver, a lawyer for Davis, said in a prepared statement.