Last month, Kim Davis, a Kentucky county clerk famous for refusing to issue marriage licenses to same-sex couples, was jailed for contempt of court. The Supreme Court’s Obergefell decision requires states to issue marriage licenses to same-sex couples in addition to recognizing same-sex marriages performed in other jurisdictions, thus resulting in same-sex marriage being legalized throughout the country.
While Davis was jailed for contempt, her deputy clerks issued marriage certificates to all couples including same-sex couples. Following her release, Davis said that she would not prevent her deputies from granting licenses, but suggested that these marriage licenses are not legally valid. Davis is quoted as saying “Effective immediately, and until an accommodation is provided by those with the authority to provide it, any marriage license issued by my office will not be issued or authorized by me.” Mat Staver, one of her attorneys, summarized her statement by claiming the marriage licenses “are not worth the paper they’re written on.”
Parallels to Burwell v. Hobby Lobby
Davis’s job is to complete the paperwork to ratify marriage unions. However, it is up for debate whether or not the licenses issued by her deputy clerks are legally recognizable without her signature. Davis’s claim to an “accommodation” regarding the issue of licenses is indicative that she is referencing Supreme Court cases like the Hobby Lobby decision in 2014. The Hobby Lobby decision joins the Employment Division v. Smith case that helped set precedent regarding religious accommodations, or exemptions from following federal law.
In Hobby Lobby, the Court ruled that closely held corporations can be exempt from a law that the owners object to because of their religious beliefs if a less restrictive means of furthering the law’s interest exists. Davis believes that the precedent set for religious accommodations should have a broader reach and should be applicable to government officials who believe certain aspects of their job are in violation of their religious beliefs.
The strongest support for Davis’ belief of expanding the current religious accommodations is the Religious Freedom Restoration Act (RFRA). The RFRA “ensures that interests in religious freedom are protected.” The law mandates that laws allegedly violating free exercise of religion have a compelling government interest and are narrowly suited to that compelling government purpose.
The new marriage licenses distributed by Rowan County do not have Davis’ office listed or her signature, and those spaces are now replaced with “pursuant to federal court order.” Davis ordered her deputy clerks to only issue licenses with the new forms. However, Kentucky state law states “The form of marriage license prescribed in KRS 402.100 shall be uniform throughout this state, and every license blank shall contain the identical words and figures provided in the form prescribed by that section.” Due to Davis’ refusal to have her name and her office title to be printed on the issued marriage licenses, the new forms do not have “identical words and figures” as the other marriage licenses in the state and would not be in compliance with the statute.
However, Governor Steve Beshear and the state’s Attorney General, Jack Conway, both believe the new marriage licenses are valid despite the statute. Kansas law also says that deputy clerks issuing marriage licenses may still be valid: “Any duty enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.” The authority to issue marriage licenses does not lie with the state legislature, but with the individual county clerks and their deputies. Despite Davis’ skepticism about the validity of the marriage licenses issued by her deputy clerks, the newly issued licenses have not yet been challenged in court and are likely still valid.
Authored by Pearl Rimon, LegalMatch Legal Writer