Section 402.100 appears to require that the license include “[a]n authorization statement of the county clerk issuing the license.” The section allows the license to be signed by the clerk or deputy clerk (which shows that the legislature knew how to include the deputies where it wanted to include them) but the authorization statement authorizing the appropriate celebrants to perform the marriage and unite the couple in marriage must be a statement of the county clerk. The county clerk must authorize the uniting of the couple in marriage. Here is the relevant language:
“Each county clerk shall use the form prescribed by the Department for Libraries and Archives when issuing a marriage license. This form shall provide for the entering of all of the information required in this section, and may also provide for the entering of additional information prescribed by the Department for Libraries and Archives. The form shall consist of: (1) A marriage license which provides for the entering of: (a) An authorization statement of the county clerk issuing the license for any person or religious society authorized to perform marriage ceremonies to unite in marriage the persons named; (b) Vital information for each party, including the full name, date of birth, place of birth, race, condition (single, widowed, or divorced), number of previous marriages, occupation, current residence, relationship to the other party, and full names of parents; and (c) The date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license It would seem to me that if the form does not include an authorization statement of the clerk (not a deputy clerk), then the form will not have been filled out as required by section 402.100. The second reference to issuance of the license by the county clerk or deputy clerk may muddy the waters. I certainly don’t think a federal court has the expertise to instruct the county clerk, who is charged with complying with 402.100 and 402.110, on the meaning of the section, or on the consequences of a potential failure to comply with it. If Davis believes a license without an authorization from her by name (indicating that she has authorized the performance of the marriage) does not comport with Kentucky law, then she either must authorize the marriages or instruct persons seeking licenses to drive an hour to another county. It also is a bit ironic that same-sex marriage proponents who cheered when officials issued licenses in violation of the explicit terms of state law (not necessarily any members of this list), now think it’s improper for Davis to act on the basis of her understanding of state law, which of course includes the state RFRA. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Saturday, September 05, 2015 7:59 PM To: Law & Religion issues for Law Academics Subject: Re: What's happening in KY? -- my differences with Eugene Howard: As the Deputy Clerk is implementing the licenses, the form of the license is the same as that throughout the state, and every license blank does contain the identical words and figures provided in the form prescribed by section 402.100. The only difference is that the Clerk's name is not written in on the blank where it would ordinarily appear. That doesn't in any way transgress 402.110. On Sat, Sep 5, 2015 at 6:55 PM, Friedman, Howard M. <howard.fried...@utoledo.edu<mailto:howard.fried...@utoledo.edu>> wrote: In discussing the changes that Ms. Davis might have made in the license form to accommodate her religious beliefs, I don't believe anyone on this list has discussed this provision in Kentucky Rev. Stat. Sec. 402.110: "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. In issuing the license the clerk shall deliver it in its entirety to the licensee. The clerk shall see to it that every blank space required to be filled by the applicants is so filled before delivering it to the licensee." Changes by her office would prevent the license from being uniform throughout the state. Do her state RFRA rights trump this? Howard Friedman
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