David Host: Kentucky’s Unnecessary Trauma

Kentucky county clerk Kim Davis sits in jail today because Governor Steve Beshear and his staff appear to have overlooked a 76-word statute.

I do not condone Ms. Davis’ apparently willful violation of a federal court order. Nor do I agree with her stated position that she has a constitutional right to ignore any of her duties as a public official. Nevertheless, a cursory review of KRS §402.080 – the Kentucky law which authorizes county clerks to issue marriage licenses – shows that Ms. Davis possesses no power to issue marriage licenses to anyone. Indeed, it appears reasonably clear that none of

Kentucky’s 120 county clerks have that authority until the Kentucky legislature amends the statute to contain gender-neutral language.

The text of KRS §402.080 states as follows:

“Marriage license required — Who may issue.

“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.”

Under the express terms of KRS §402.080, “the female” must apply for a marriage license before a county clerk “shall” issue a marriage license; and the statute further declares that “[n]o marriage shall be solemnized without a license therefor.” Although the U.S. Supreme Court did not strike down this statute directly two months ago, KRS §402.080 is certainly unconstitutional within the meaning of its decision. Thus, it appears that Kentucky has operated without a valid marriage statute since the date of the Court’s decision.

Although I remain a dedicated member of the “loyal opposition,” I believe that Steve Beshear is an able and honorable man who has served as one of my native state’s better governors during my lifetime. In general, he has thoughtfully put the interests of Kentuckians ahead of any other agenda – which is why I have been surprised and disappointed by his decisions following the U.S. Supreme Court’s ruling.

The fundamental impact of the U.S. Supreme Court’s ruling was to strike down as unconstitutional any state marriage law which expressly restricts marriage to opposite-sex couples. Yet, the Court does not have the authority to reach into any state and write a replacement statute. Thus, each state had an obligation to immediately review its marriage statutes to determine if action by that state’s legislature might be necessary to implement the Court’s ruling.

Some states might have already had gender-neutral marriage laws on their books prior to efforts in recent years (through additional statutes or state constitutional amendments) to expressly define marriage as between persons of the opposite sex. In those states, no legislation was necessary for the Court’s ruling to go into effect immediately. In states like Kentucky, however – where the Court’s decision invalidated the core statute which authorizes marriage – legislative action seems essential in order to preserve anyone’s right to marry. As Governor Beshear has rejected bipartisan requests to call the Kentucky legislature into special session, a serious question exists whether any person has received a legally valid marriage license in Kentucky during the last two months.

As Kentucky’s chief executive, Governor Beshear’s critical responsibility following the Court’s ruling was to assess its specific impact upon Kentucky’s marriage laws, and determine what steps were necessary to bring those laws into compliance. Instead, he immediately instructed Kentucky’s county clerks – 120 independently elected constitutional officers – that they must begin issuing marriage licenses on a gender neutral basis, even though it seems that Kentucky law no longer authorizes them to issue any marriage licenses.

I respect the fact that having engaged in a good-faith effort to defend Kentucky’s existing marriage laws (to the extent that he hired outside counsel when Kentucky’s attorney generalrefused to proceed with an appeal), Governor Beshear wants to move beyond this issue. I further understand his concerns about the cost to Kentucky taxpayers of calling a special legislative session – particularly when that special session is almost certain to feature lengthy and acrimonious debate regarding how to implement a U.S. Supreme Court decision with which a significant majority of Kentuckians appear to disagree.

Yet, I cannot perceive how Governor Beshear has any choice under the existing state of Kentucky law. Moreover, a special session would allow the legislature to formulate “conscientious objector” provisions which excuse county clerks whose religious beliefs prevent them from issuing marriage licenses to same-sex couples. Perhaps most important, this measure would end the trauma associated with Kim Davis and the stance she has felt compelled to take.

At some point, the absence of immediate corrective legislation could cost Kentuckians far more than the expenses associated with a special legislative session.