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ACLU of Kentucky Willing to Sue the County Clerks Refusing To Issue Marriage Licenses

Tadd Roberts and Benjamin Moore
Laura Ellis
Tadd Roberts and Benjamin Moore

The ACLU of Kentucky is prepared to sue county clerks who are refusing to issue marriage licenses because of the Supreme Court's ruling allowing same-sex marriages in the U.S.

As first reported by the Herald-Leader, clerks in Casey, Lawrence, Montgomery, Rowan and several other counties have decided to stop issuing licenses to all couples rather than face claims of discrimination. The clerks cite personal beliefs against same-sex marriage for not issuing the licenses.

The ACLU of Kentucky is prepared to file lawsuits against those clerks, and would cite in its filing the equal protection clause of the U.S. Constitution, said Bill Sharp, a staff attorney with the organization.

“Any county clerk’s decision to refuse to issue them a marriage license where they’re otherwise qualified to receive such a license, we’ll be happy to represent those individuals and sue the county clerk in that office,” Sharp said.

Soon after Friday's Supreme Court ruling, Gov. Steve Beshear issued an ordersaying Kentucky would immediately begin issuing marriage licenses to same-sex couples, and also recognize such unions.

In an email on Monday, Beshear urged clerks to issue marriage licenses to couples and said that same-sex couples are entitled to a marriage license by every county clerk in the state.

“While there are certainly strongly held views on both sides of this issue, the fact remains that each clerk vowed to uphold the law regardless of his or her personal beliefs,” Beshear said.

Attorney General Jack Conway also advised clerks against denying marriage licenses.

“Any clerk that refuses to issue marriage licenses is opening himself or herself to potential legal liability and sanctions,” Conway said. “Any couple denied a license may seek remedy in federal court, but should consult with a private attorney about their particular situation.”

Many same-sex marriage opponents have remained resolved against issuing licenses following Friday's landmark court ruling. Texas Attorney General Ken Paxton issued an advisory opinion saying county clerks in his state can deny same-sex marriages on personal religious grounds.

Paxton also claims that pro-bono lawyers will be available to represent clerks with religious objections.

University of Kentucky employment law professor Scott Bauries said he expects clerks to seek protection under the Religious Freedom Restoration Act.

“What they’re thinking is they can object as individual citizens to something they are required to do as part of their employment,” Bauries said, adding that this is an untested area of the law because the issue involves government officials.

“When you do your job as a government employee, you are not working in your own interest as an individual citizen," he said.

"You are working as a government employee, and therefore you are the government for the purposes of that job. Which means anything the government can’t do, you can’t do."

University of Louisville law professor Samuel Marcosson said that clerks don’t have the right to impose their beliefs in a way that deprives others of constitutionally protected rights.

“They have to carry out that legal responsibility and if they can’t because of their religious beliefs, they have to make sure that somebody else does so that all people’s rights are respected,” Marcosson said.

As elected officials, county clerks take an oath to defend the Kentucky and U.S. Constitution.

According to a Bluegrass Poll from March, 57 percent of Kentuckians oppose same-sex marriage.