Rowan County Clerk Kim Davis has gotten national attention for her refusal to grant marriage licenses to same-sex couples, but two other Kentucky county clerks have adopted similar policies in recent months.
The only major difference: Neither has been sued.
Like Kim Davis, Casey County Clerk Casey Davis (no relation to Kim) and Whitley County Clerk Kay Schwartz stopped issuing marriage licenses after the Supreme Court legalized same-sex marriage in June. All three clerks say their deeply held religious beliefs prevent them from granting the forms to same-sex couples.
On Friday, Whitley County Clerk Kay Schwartz told WFPL News she has resumed issuing marriage licenses, but she said she’ll still deny licenses to same-sex couples. She would not provide further details, saying “don’t stir this, please.”
Earlier this month, Casey County Clerk Casey Davis said he would issue marriage licenses to same-sex couples, but he won’t sign them.
“I’m still not signing same-sex marriage licenses, I’m not issuing it myself,” Casey Davis said.
He said if a same-sex couple requested a license, he would alter the form — much like Kim Davis has begun doing.
Kim Davis was ordered by a federal court to issue marriage licenses, and while she has personally refused to do so, she has achieved a tenuous agreement with the court: her deputy clerks issue licenses that have been altered to remove her name and title.
“We are basically doing what Rowan County is doing, what the judge’s order says,” Casey Davis said.
But WKYT-TV reportedlast week that Davis said he’s not issuing the forms to any couples. After speaking with WFPL News recently, Davis and the Casey County Clerk’s Office would not return requests for comment late this week to clarify his position.
Members of the state legislature are considering changing the state’s marriage laws to remove county clerks from the license form. Casey Davis has said he’d be fine “recording” a same-sex marriage if legislators were to change the state law.
“I think that’s the simplest thing. I don’t want to record something like that, but I can sleep with that. I can’t sleep with issuing it,” he said.
Eight Rowan County residents — two straight couples and two same-sex couples — sued Kim Davis for refusing to issue them marriage licenses earlier this summer. The ACLU, which is representing the couples, earlier this week moved for Kim Davis to be held in contempt for altering marriage license forms.
ACLU of Kentucky spokeswoman Amber Duke said "there’s no legal basis" for the Whitley and Casey county clerks "to continue denying licenses to anyone that is eligible." Those clerks said no same-sex couples have requested a marriage license.
If couples in other counties with defiant county clerks want marriage licenses, they would have to file independent lawsuits, according to University of Louisville law professor Sam Marcosson.
“You have to have a lawsuit filed by somebody whose rights have been infringed in order to get a court to have jurisdiction to then start issuing the orders of the kind we’ve seen in the Kim Davis case,” Marcosson said.
Unless there were new legal arguments, lawsuits in the other counties would be settled quickly because Kim Davis has already been ordered to resume issuing licenses in Rowan County, Marcosson said.
“It seems reasonable to me that they’re using this first case to establish the law to make clear what the responsibilities are," he said. "And then once that has been established, use that as the foundation to move on to other counties and bring similar lawsuits.”
