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Kentucky’s Governor-Elect Proposes Solution To The Kim Davis Problem

Kimberly Davis

Kentucky Governor-Elect Matt Bevin is wants to change state law that will essentially get Kim Davis and other County Clerks who share her views on same-sex marriage off the hook for any further legal liability if they refuse to issue marriage licenses to same-sex couples while at the same time allowing those licenses to be issued:

Two months after a county clerk in Kentucky became a national figure and was jailed for refusing to grant marriage licenses bearing her name to same-sex couples, the state’s governor-elect said Friday that soon after taking office, he would order new licenses that do not have clerks’ names, a change that would address one objection raised by opponents of same-sex marriage.

Lawyers for Kim Davis, the clerk in Rowan County who has said that same-sex marriage violates her Christian beliefs, have argued that forcing her to issue licenses with her name on them violated her rights by suggesting that she endorsed the unions. The courts have not agreed, but lawmakers have said the conflict could be resolved by altering the licenses.

“One thing I will take care of right away is we will remove the names of the county clerks from the marriage forms,” Matt Bevin, the Republican governor-elect, said Friday at a news conference at the State Capitol in Frankfort.

The departing governor, Steven L. Beshear, a Democrat, has insisted that an act of the Legislature was required to change the form and that a governor could not do it unilaterally.

“The idea that cannot be done is baloney,” said Mr. Bevin, who won election on Tuesday, and will take office on Dec. 8. “We will do that by executive order. We will do that right out of the gate.”

After the Supreme Court’s landmark ruling in June that same-sex couples must be allowed to marry, Ms. Davis refused to put her signature on any marriage licenses. A federal judge ordered her to comply with the ruling, and when she still refused, he found her in contempt and had her jailed for five days in September. At the judge’s direction, her office has been issuing licenses signed by her deputy clerks.

Ms. Davis was not the only local official in the country to defy the justices’ ruling, but she became the national symbol of resistance to it, and a rallying point for conservatives who propelled Mr. Bevin to victory. His Democratic opponent in the race, Attorney General Jack Conway, had argued that Ms. Davis should simply do as the courts ordered, but he, too, raised the possibility of resolving the conflict by removing clerks’ names from licenses.

Ideally, Mr. Bevin has said, a marriage license should not be something that the government grants; rather, it should be a form that anyone can download at will, and then submit to the government purely to be recorded.

Bevin’s proposal would have to make it through the Kentucky legislature, which is currently split between a Republican controlled State Senate and a Democratic controlled House of Representatives, but it seems unlikely that this is the kind of legislation that would face many obstacles even from the Democrats. If this were passed into law, it wouldn’t really have any impact on the ability of gay and lesbian couples in Kentucky to get marriage licenses. The only thing that would change would be what the wording on the form says and whether or not the County Clerk has to sign off on the document in question. As long that document is considered valid under state law and the couples to whom it is given are considered legally married under state law, then the requirements of the Supreme Court’s decision in Obergefell v. Hodges, and the Court order that was issued in Davis’s case back in August, will have been met. The reason that this isn’t an acceptable alternative at the moment is because, under Kentucky law, marriage licenses must be signed off on by the Clerk or one of their deputies, and Davis’s refusal to do that and her order to her deputies that they not do so either was a clear violation of the law.

On some level, of course, I don’t necessarily like the idea of Davis and the people she represents being handed what amounts to a victory here, but I don’t think there’s really any basis to complain that much about it. Even before Bevin’s election or the Supreme Court’s decision, Kentucky was always free to change the legal form that the state issues to married couples, and as long as the law doesn’t discriminate against same-sex or other couples legally eligible to be married then any changes now are not legally objectionable. Additionally, if making this change eliminates the reason that Clerk’s Offices in Kentucky might be tempted to violate the law and discriminate against gay couples then I suppose that it is the best that can be made of a ridiculous situation.

None of this is to endorse the bigoted position that Davis takes when it comes the rights of same-sex couples, of course, or to justify her refusal to comply with the law and the valid orders of a Federal District Court Judge. That may be how some of her supporters paint it, but there’s not really much that can be done about how they characterize it. If this change in the law eliminates the ability of Davis or those like her to deny other people equal rights, though, then I think we should just count that as a win and move on to the next battle.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Modulo Myself says:

    Given that the Little Sisters of the Poor are arguing that even signing a single form that hands over birth control coverage to the government violates their religious freedom, I’m not sure if this move will work. The religious right seems to believe that they have to follow nothing when it comes to gays and birth control.So in this case, obviously somebody has to do something with the document. Can the Kentucky government force a religious clerk to scan a marriage document for Steve and Dave? Can they force them to perform data entry for it?

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  2. C. Clavin says:

    Seems like a perfectly reasonable solution, to me.
    From what I’ve seen of Davis , I don’t believe she will be happy unless she is allowed to force her mis-guided religious beliefs on others.
    But that’s Bevin’s problem to deal with.

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  3. SenyorDave says:

    If this change in the law eliminates the ability of Davis or those like her to deny other people equal rights, though, then I think we should just count that as a win and move on to the next battle.

    I agree completely. I do believe that Davis’ position is an elected one, and I would hope that come election time her constituents remember that this person didn’t want to do her damn job because she selectively decided to claim her religious liberty was violated.

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  4. C. Clavin says:

    Snark
    It seems to me that Bevin is being dictatorial and Hitler-like by issuing executive orders and by-passing the legislature.
    /Snark

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  5. Franklin says:

    Sounds reasonable to me as well. Good job, Mr. Bevin … even though I was hoping Drew Curtis would somehow get elected instead.

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  6. Davebo says:

    @SenyorDave:

    The county has elected a Davis to the position for over 35 years. Odds are that won’t change and her son will inherit her office as she did.

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  7. Joe says:

    @SenyorDave: Surely when this Democrat-voting county is reminded that she has switched her party affiliation to Republican, they will be outraged and have nothing more to do with her.

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  8. ernieyeball says:

    Don’t know about Kentucky but for years in Illinois state and county level office holders’ names were a part of the title of the position they were elected to. Real Estate Tax Bills for instance were payable to Pammy Whammy, Pumpkin County IL Treasurer.
    It was pretty much a year round campaign commercial for their reelection.
    I remember writing checks for my drivers license and truck registration to Paul Powell, Secretary of State of Illinois. Maybe the practice fell out of favor because of him.

    Powell died in 1970, in Rochester, Minnesota, as an outpatient of the Mayo Clinic. Some newspapers, such as the Pantagraph of Bloomington, Illinois, wrote disparaging editorials about Powell immediately after his death, alleging corruption, and were criticized for it. However, the media criticism of Powell would soon prove to be accurate.
    Although he never made more than $30,000 a year, upon his death, shoeboxes, briefcases and strongboxes with more than $800,000 in cash were found in his hotel suite residence at the St. Nicholas Hotel in Springfield, Illinois.[2] In his hotel room he also had 49 cases of whiskey, 14 transistor radios, and two cases of creamed corn. When settled in 1978 his estate was worth $4.6 million, of which $1 million was racetrack stock.[3] A federal investigation determined that Powell had acquired much of his wealth through illegal cash bribes, which he received for giving noncompetitive state contracts to political associates. The State of Illinois received a $222,999 settlement from his estate; in addition, several state contractors were imprisoned for their roles in the affair.

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  9. grumpy realist says:

    @ernieyeball: It’s the creamed corn that is really suspicious. The booze is pretty standard.

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  10. CSK says:

    The “base” will be irate. Bevin hasn’t even taken office yet, and he’s already stabbed them in the back.

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  11. Rafer Janders says:

    @ernieyeball:

    In his hotel room he also had 49 cases of whiskey, 14 transistor radios, and two cases of creamed corn.

    I can, maybe, see the need for one case of creamed corn. But two? That’s just excessive.

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  12. gVOR08 says:

    @Davebo: Not sure. The county of 23,000 is home to Morehead State Univ with a student body of 11,000. Apparently there’s a town and gown element to this and the students may be a bit more interested in local politics than they were for the last election.

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  13. gVOR08 says:

    @ernieyeball: Lordy, you’re bringing back old times. I was a student at the Univ of Illinois in 1966, during Powell’s tenure. One night a popular bar got raided by uniformed cops. They dragged a bunch of people off to the local drivers license office and held them there. In the morning the local police said they had no idea what it was about. Turned out they were Secretary of State Police. Nobody knew there was such a thing. They were looking for altered driver’s licenses. There was a protest march a few days later, led by the President of the campus Young Republicans. He announced that he normally didn’t hold with civil disobedience, but in such an egregious abuse of civil rights… Apparently some of his frat bros got busted.

    The raid was organized by a chief investigator for the SoS, a gentleman named Frank (Porky) Porcaro, a name I still remember. The story was kind of dying when the Chicago Tribune interviewed his wife in Chicago. And his wife in Springfield. Shortly thereafter he resigned and was sent to prison for bigamy and theft of state property, after testifying about bribery, corruption, and gangster influence in State gov’t.

    Thought my trip down memory lane might be amusing. And an example of how bad politics in IL used to be.

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  14. ernieyeball says:

    @gVOR08:..And an example of how bad politics in IL used to be.

    Used to be???
    Isn’t former Illinois Governer Rod Blagojevich still in the slammer?
    And the late former Gov. George Ryan spent more than five years in federal prison and seven months of home confinement.
    Two of the Prairie States more recent duly elected miscreants.
    As for Powell the most fitting epitaph I ever heard for him was when I was driving the Sleepytown Yellow Cab in the early 70s’ when I was in college.
    I worked the 2nd shift 6pm to 6am. After midnight the dispatcher would take out his teeth, put his head down on the desk and fall asleep to the country tunes on the radio from WBAP out of Fort Worth, Texas. Some 700 miles to the southwest.
    The DJ would make dedications that listeners would call in. I about fell out of my chair when he said: “And here is a request from Illinois from Paul Powell to Ma Hatchett…”
    Since both of them were dead it was pretty clear the announcer didn’t have a clue who he was talking about.

    Taverns were plentiful and none was better known throughout the region than Ma Hatchett’s place. (In Colp, IL) Johanna Hatchett or “Ma” moved to the region from Kentucky with her husband, William. He was employed at the old Clifford 8 mine north of town while she operated a boarding house, which others called a house of ill repute, and then later the tavern turned nightclub.
    http://thesouthern.com/news/local/colp-was-once-an-entertainment-mecca-in-williamson/article_34a5be55-4080-598b-a5ab-af1c50475e3d.html

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  15. ernieyeball says:

    @gVOR08:..He announced that he normally didn’t hold with civil disobedience, but in such an egregious abuse of civil rights… Apparently some of his frat bros got busted.

    Good to see that he had his priorities straight.

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  16. ernieyeball says:

    Per WikiP they were organized in 1913…

    https://www.facebook.com/Illinois-Secretary-of-State-Police-483230351768517/

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  17. cian says:

    Change the law so that bigots are allowed keep their bigotry intact? Have both houses sign off on it thus delivering a significant victory to the extremists? And Doug thinks this is where it ends? The Kim Davis’s of this world hate gays. Their goal is not a reasonable compromise, Doug. It really isn’t.

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  18. Jenos Idanian says:

    There can be no compromise, there can be no accommodation, there can be no tolerance. The dissenters must be CRUSHED.

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  19. gVOR08 says:

    @Jenos Idanian: Telling her she has to do her job = CRUSHED. Good to know.

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  20. Jenos Idanian says:

    Yeah, like I said. No compromise, no reasonable accomodation — total acquiescence is the only acceptable response. Anything else will not be adequate. Zero tolerance.

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  21. ernieyeball says:

    @Jenos Idanian:.. The dissenters must be CRUSHED.

    Or shot dead if they don’t listen to the correct political intrepretation of American history.

    I almost wish that there would be, like, a simultaneous telecast, and all Americans would be forced — forced at gunpoint no less — to listen to every David Barton message, and I think our country would be better for it. I wish it’d happen. Huckster Huckabee
    http://www.patheos.com/blogs/friendlyatheist/2011/03/31/mike-huckabee-wants-to-indoctrinate-you-at-gunpoint/

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  22. James Pearce says:

    I don’t necessarily like the idea of Davis and the people she represents being handed what amounts to a victory here,

    Not so sure that this is a victory. Davis and “her people” would prefer gay marriages not occur at all. Having no legal way to do that, they’re left with recusing themselves from the proceedings entirely.

    The end result is that the Kim Davises of the world, who used to be so loud and able to flex their muscles, will now be rendered mute and powerless. “Oh, you have a religious conscience? Well, there’s the corner. We’ll come get you when we’re done.”

    If Bevin’s successful, the capitulation will be complete.

    Consider, the biggest and strangest development in the gay rights world is social conservatives, not gay people, seeking accommodations. Zoom out a bit and it’s a pretty epic reversal of the way things used to be.

    @Jenos Idanian:

    No compromise, no reasonable accomodation — total acquiescence is the only acceptable response.

    Seems like they’re about to establish that the “reasonable accommodation” is for people of religious conscience to recuse themselves. If that’s an unsatisfactory result, I can certainly understand.

    I’m not sure I understand the complaints about compromise. This is the compromise.

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  23. Jenos Idanian says:

    @ernieyeball: Hey, we agree Huck’s an a-hole. We found common ground!

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  24. Jenos Idanian says:

    @James Pearce: I was paraphrasing cian and GVOR there. I think this is a reasonable settlement, respecting the rights of all sides.

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  25. anjin-san says:

    @Jenos Idanian:

    The dissenters must be CRUSHED

    I thought that already happened. You know, the gun confiscations, the mass arrests, the FEMA camps, the federal takeover of Texas…

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  26. Jenos Idanian says:

    @anjin-san: Does it hurt to list your long list of failures, annie?

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  27. Monala says:

    @Jenos Idanian: Oh, come on. None of those things have ever been planned or attempted. They’re just fevered imaginings of some conservatives.

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  28. Jenos Idanian says:

    @Monala: I was treating annie with all the seriousness he deserves. More, even.

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  29. James Pearce says:

    @Jenos Idanian:

    I think this is a reasonable settlement, respecting the rights of all sides.

    That it’s even considered a “settlement” is funny. Kim Davis has been resolutely and convincingly told “No” and that if she doesn’t like it, “Tough.”

    Once Bevin makes this change, if he makes the change, religious objection to gay marriage, at least in officialdom, is done. We’ll probably have the odd catering issue to work out in the private sphere, but as far as government policy goes, it’s done.

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