There are several legal issues that are brought up by the recent actions of Rowan County Clerk Kim Davis after she refused marriages licenses to several couples following the June SCOTUS decision. The first of these legal issues is more of a common misconception. Why wasn’t she just fired for not doing her job? The answer is simple, she was elected as the county clerk, so she is an elected official rather than just an ordinary employee. Under Kentucky law the only method of removing an elected officer for misconduct or neglect of duty would be by impeachment before a committee 2/3rds vote in the Kentucky State House of Representatives or the Kentucky State Senate. KY. Const. Sections 66-68. In Davis’s cases “neglect of duty” could be considered careless or intentional failure to exercise due diligence in the performance of official duty or gross immorality or misconduct in office amounting to neglect of duty. KY. ST. Section 63.090.
The next issue is whether or not Davis should have accommodations for her religious beliefs. Accommodations that would allow her to ignore her duties to issue same-sex marriage licenses or to allow her to use her office deny those licenses. After the SCOTUS decision in June that essentially legalized same-sex marriage, the Governor of Kentucky issued a directive that all county clerks were to follow this decision. The court has disposed of this issue in some sense by affirming the Governor’s directive because it neither asks Davis to condone same-sex marriages nor impairs her religious beliefs. As well as ordering Kim Davis to cease interference with her deputy clerk’s issuance of licenses to same-sex couples. Miller v. Davis, No. CIV.A. 15-44-DLB, 2015 WL 4866729, at *15 (E.D. Ky. Aug. 12, 2015). Further interference with the issuance of marriage licenses could result in more jail time for Davis.
The third issue being discussed is whether or not the current licenses being issued by deputy clerks in the Rowan County Clerk’s office are valid. During the 5 days Davis was jailed for contempt after ignoring court order not to interfere, a county executive judge was allowed to issue licenses in her absence, this was valid under Kentucky statute. KY. ST. Section 402.240. After Davis returned to work she altered the license forms and the Rowan County Clerk’s Office deputies began issuing marriage license forms without any markers identifying Davis, names only one of her clerks and the Rowan County Clerk’s Office but instead “in accordance with a federal court order”. This lack of required markers has brought issue to whether theses licenses are valid when non-compliant with some KY marriage statutes. Kentucky marriage statutes require that a marriage shall not be solemnized without a license but that a license shall be issued by a clerk of the county. KY. ST. Section 402.080 A marriage license must also contain the signature of a county clerk or a deputy county clerk. KY. ST. Section 402 .100. This provides some safeguards for those marriages issued by the executive county judge for the five days Davis was in jail for contempt, but not necessarily for those issued while she continues to work at the office with the revised form because it lacks the statutory requirements, although they are being issued under federal court order.
Further legal issues to watch for in the future are other reported actions filed by other county clerks for similar accommodations as well as 2016 KY House Bill No. 31 which would transfer the responsibility of issuing marriage licenses and related marriage responsibilities to the state registrar of vital statistics.