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Legal chaos continues in Rowan County

Here's the latest, which I find interesting as a legal geek and also find a relief as a supporter of Kim Davis.

Davis's office has apparently typographically altered "licenses" issued at her office so that they do not refer to her either by name or by title. They do not state that they are issued under the authority of the county clerk but rather "pursuant to federal court order" with a number of the court order. Davis has openly (in a press appearance this morning) questioned the legal validity of these "licenses," as well as of the "licenses" issued against her protests in her absence, which apparently did say (falsely) that they were authorized by the county clerk. This amounts to a "proceed at your own legal risk" notification to anyone who attempts to contract civil marriage using one of these forms.

I find it interesting that her deputies were fine with this and apparently expect federal Judge Bunning not to care that the "licenses" have been altered to this extent. The governor himself, through his lawyers, has already piously pointed out that Kentucky law requires licenses to be issued under the authority of the county clerk and to be uniform throughout the state. These pieces of paper do not meet either of those criteria. One would almost think the governor (who refused to call a special session of the legislature to alter the forms) wants Kim Davis in jail.

Does Judge Bunning just want symbolic "licenses" even at the cost of legal dubiety? Apparently so.

But while we're at it, let's have no cant to the effect that Kim Davis has been the one challenging the "rule of law." The legal chaos right now has been created by SCOTUS, directly. Indeed, this is how it often works when a law is "struck down" by the Supreme Court. It's a form of hostage taking. The previously existing law, which had everything laid out in an orderly fashion, becomes allegedly null. There ensues a legal no-man's-land, and the relevant legislature feels in duty bound to write a law (which they might otherwise have conscientious objections to) that complies with both the letter and the spirit of what SCOTUS hath uttered, otherwise it seems to them there will be a limited field of anarchy in that region of law. It's a clever tactic. Bare-knuckled, but clever. If you want marriage law with conscience exemptions in your state, hurry up and make a new one that recognizes same-sex couples. If you want abortion law of any kind, hurry up and make one that does whatever is left to do within the confines of Roe v. Wade. Otherwise you got nothing--a legal Wild West.

I'm pleased that it appears Kim Davis won't be going back to jail for the time being. I'm also pleased that she hasn't violated her conscience. And I'm pleased that the other people in her office were willing to work with her to alter the "licenses" so as not to violate her conscience.

It would be sweet poetic justice if, five years down the line, one member of one of these same-sex "couples" wants to get a "divorce" from their "marriage," and the other member decides to go back and exploit the legal dubiety of the "marriage" in the first place. "Actually, our marriage license was invalid, so I don't have to divide my retirement fund with her now that we're breaking up." That would be an interesting case to watch in family court.

Comments (9)

“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”

Golly, wow, I wonder she never thought of that. Could have saved her six days in jail.

Or maybe not.

The problem is that the forms are supposed to say, under Kentucky law, that it was under the authority of the County Clerk. That's what they used to say. Even if a deputy signs it.

I know of some agencies which have specific rules ("orders") that spell out how far downwards certain things may be delegated. This sounds like that. It does not change the fact that, when the lower-down official acts with such a delegation order in place they are acting by reason of such delegation, they act on the authority of the higher official.

By the way, I think this move of hers of allowing the distribution of these radically altered "licenses," which do not meet the criteria for valid licenses under Kentucky law, is clever and quite legitimate. I think she is somewhat distressed both by the legally questionable nature of the "licenses" and also by the fact that they are being given out to homosexual couples at all. But if she were in jail, legally questionable licenses without her authorization would also be given out. Apparently the judge doesn't care about that. This way, she has the opportunity to alter the form *still more* to make it even *clearer* that she is not authorizing them. It is also quite appropriate that fake "marriages" should be receiving toy "licenses" that will only be worth as much legally as the system arbitrarily decides later to make them worth, if any question should arise. And this move, by authorizing the "licenses" not by her but only as "pursuant to federal court order #___" is in essence saying to SCOTUS and Judge Bunning, "You created this legal mess. You own it."


A couple of points.

I heard Roger Severino interviewed about Kim Davis after she was released from jail and after he wrote this piece:


In the piece he proposes a couple of ways she could be let out of jail and the government of Kentucky could accommodate her beliefs:

One help in finding the way forward is Kentucky’s Religious Freedom Restoration Act, which requires the government to avoid substantially burdening religious expression absent a compelling government interest. There is no compelling government interest in keeping Kim Davis’s name on the licenses instead of the name of the deputy clerks who are willing to issue them. If it’s “just a little form”—as Davis’ critics would like to suggest—then change the form, not the beliefs.

There are a number of other possible accommodations that could be adopted by the legislature, courts, or executive agencies in the state. Davis is not interested in stopping all same-sex marriages in her county. She is only asking that she not be forced to participate in them in a way that violates her beliefs.

In the interview I listened to I was particularly interested to find out that vegan county clerks are granted an accommodation to not have to issue hunting licenses as it would violate their conscience -- if Kentucky can accommodate vegans you would think they can accommodate orthodox Christians!

Jeff, that's interesting about vegans! I wonder if the accommodation is written into statutory law or what. The governor has clearly been trying to back Kim Davis into a corner by a) insisting that only the legislature can change the form and b) refusing to call a special session of the legislature. I have a lot of respect for her decision to go ahead and change the form on her own and let the other state officials sort it out. In that way she says that she won't be bound by their coercive attempts to get her to allow her office to issue *the* standardized form in violation of her conscience.

If I recall correctly, I think the vegan accommodation was written into statutory law -- but given that Kentucky already has a religious freedom act on the books, it seems like the Governor could have easily worked with Ms. Davis to figure out a way to create legal certificates issued by her office that didn't have her name.

Instead, everyone had to gang up on the faithful Christian and throw her into jail.

Davis is married and has children, no? I don't see how she could look her grandchildren square in the eye were she unwilling to spend a few days in jail for the greater good of all involved on something as insane and socially destructive as "gay marriage." At the end of the day I imagine hers will have been a small sacrifice for a principle so important, but I commend her for laying it on the line! Would that more of our local officials were willing to do the same.

On a lighter note, remember the old Disney movie, Johnny Tremain? The Admiral's line, "yes, but it seems those indians prefer principle to profit," or something like that. That scene came to mind as I was reading the main post.

On a tangential note in keeping with my pet theory of the imminent modern Test Acts, looks like the Frito-Lay company is becoming an enthusiastic participant in the perversion propaganda machine by making and sending rainbow Doritos to people who donate for their LGBT campaign.

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