Is this Kentucky county clerk's plan to resist same-sex marriage even legal?

Casey Davis is the court clerk for Casey County, Kentucky. Like Kim Davis—with whom he shares no relation—Casey Davis objected to the Supreme Court’s June ruling on same-sex marriage on religious grounds, and in response, he refused to issue marriage licenses to any couples in his county.

The Casey County clerk’s office has since resumed issuing marriage licenses, and Clerk Davis says that his office will issue forms to same-sex couples. But the forms, Casey Davis said, will not include his signature and authorization, nor will they include the signature and authorization of any of his deputy clerks. According to public officials and local law experts, the signatures’ omission would make the marriage licenses issued to same-sex couples effectively invalid in the state of Kentucky.

The Kentucky Attorney General’s office confirmed that valid marriage licenses in the state must bear the signature and authorization of a county clerk or their deputies. Allison Martin, Kentucky Atty Gen. Jack Conway’s communications director, told me their office “has had conversations with Mr. Davis and shared [these public statements] with him.”

For his part, Casey Davis cites the marriage licenses issued to same-sex couples in Rowan County, where Kim Davis is county clerk, to make his case. Those licenses were signed by Deputy Clerk Brian Mason, as Clerk Kim Davis was in jail under court order for refusing to issue marriage licenses.

“The governor and the attorney general both said that we could give licenses with no signature or authorization,” Davis told me.

He is referring to comments Kentucky Gov. Steve Beshear made in September, saying that the first marriage licenses issued to same-sex couples in Rowan County, which bore Deputy Clerk Brian Mason’s name instead of Kim Davis’, were valid.

“If same-sex couples want to come, we have a form without my name and authorization,” Casey Davis said.

The clerk confirmed that this form would also not include a signature and authorization statement from any of his deputy clerks, who were not publicly elected, but hired by Davis. A deputy clerk reached by phone declined comment on whether she would sign and authorize a marriage license for a same-sex couple in Davis’ place.

Intentionally omitting a clerk or county clerk’s signature and authorization statement from a marriage license would violate Kentucky state law, statute 402.100, according to Anita Britton, a family law attorney with Lexington law firm Britton-Osborne-Johnson, PLLC.

“I would have to consider [the act of] removing the signature and authorization statement from a prescribed form to be in violation of the statute,” Britton said by email. “The plain language of the statute requires an authorization statement and a signature. It further appears to require that the clerk ‘shall’ (not ‘may’) use the form prescribed by the Department of Libraries and Archives.”

Using a form other than the one prescribed by the Department of Libraries and Archives to same-sex couples—Casey Davis referred to this customized form as a “blank form”—would also be a violation of the couples’ 14th Amendment rights, said Scott Bauries, constitutional law expert and associate professor at the University of Kentucky College of Law.

“That would be a violation of the Equal Protection Clause,” Bauries told me. “That’s not exactly the same violation that was in the [Supreme Court’s] Obergefell v. Hodges case that [ended in favor of the constitutional right for same-sex couples to marry]—that case was a complete denial of the right to marry. But [using two different marriage license forms] is granting the right to marry on separate but equal terms.”

Casey Davis said that his “blank form” was an “accommodation” he was fine with making, as it would allow him to do his job without violating his “religious objections” to same-sex marriage. According to these experts and public officials, he effectively has no legal defense for making this accommodation.

“Whether you agree with [same-sex marriage] or not, that’s the law,” said Casey County’s county attorney, the Hon. Thomas Weddle, Jr. “When you put that public official hat on, you do your job. I do not think that Casey Davis has done his job, and I think that he either needs to start doing it…or else resign. It’s that simple.”