Friday, July 10, 2015

The problem with prosecuting county clerks under current Kentucky laws

One of the things the critics of county clerks balking at issue same-sex marriage licenses don't seem to take into account is the current language of Kentucky's Revised Statutes, which have not yet been changed to accommodate the Obergefell decision. This brings up a number of questions.

If there is a right to same-marriage, then what obligation does that confer on county clerks. To the critics this seems clear, but I hardly think it is. Does a right automatically infer a commensurate obligation of some kind? How? And how does it do it when the actual statutory language doesn't yet reflect it.

Let me give one example. Which county clerk is responsible for issuing a marriage license? According to 402.080, "The license shall be issued by the clerk of the county in which the female resides at the time..."

So what if two men come to a county clerk and request a marriage license? Since neither is a female, is the county clerk in the county in which both or either of them reside responsible? Or can they get it anywhere? Is there any particular county clerk under these laws who is actually individually responsible?

If two women come to a county clerk and request a marriage license and they live in different counties, is there another clerk who could issue them the license?

This is just one issue. There are numerous others that have to await the legislature completely rehauling the law.

What does this say for how clerks who are refusing to marry can be prosecuted, since there is no statutory law which coherently lays out their responsibility in same-sex marriage situations?


Anonymous said...

402.080 looks like a link but isn't

j a higginbotham

Anonymous said...

Only applies to non-widowed under 18's.
This needs to be fixed but isn't a major problem at the moment.

402.080 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.

KyCobb said...


As pointed out, the gist of the statute is that a license may be issued by any county clerk unless the female is under 18, so unless two minor females who reside in different counties are marrying, there isn't really a problem. That requirement seems archaic anyway; why should minor females be limited to one clerk when a minor male can get a license from any county clerk? So they should probably just eliminate that requirement for minor females.

Martin Cothran said...


You are right. I'll rewrite this with the correction tomorrow.

Anonymous said...

oops, a bit more anonymous than i intended
maybe some day i can get one of these id things to work
openid or aim are the only ones left i think, the others won't let me log in

j a higginbotham