Counting the clerks

Posted on 11 Sep 2015 at 7:30am

DAVID TAFFET  |  Senior Staff Writer

While Rowan County, Ky., Clerk Kim Davis has become the national symbol for resistance to same-sex marriage, clerks in other states and two others in Kentucky also continue to resist issuing marriage licenses.

Davis was found in contempt of court for refusing to issue any marriage licenses and preventing her deputy clerks from issuing them either. She spent five days in jail while her deputies began complying with the court order.

Two other clerks in Kentucky say they are also defying the Supreme Court ruling. But neither has faced legal action.

Whitley County Clerk Kay Schwartz said she is issuing licenses to opposite-sex couples, but not to same-sex couples. And she is doing that with no legal repercussions. But only because no same-sex couples have applied for licenses in her office.

Whitley County is a small county on the Tennessee border with a population of about 35,000.

Casey County Clerk Casey Davis — no relation to Kim — has stopped issuing all marriage licenses. Casey County is even smaller than Rowan or Whitley County, with a population of about 16,000. Unlike Kim Davis,

Casey Davis was getting no attention for his refusal to comply with the Supreme Court marriage equality ruling, so he began a bike ride across the state to support Kim Davis.

His ride got him more attention than his refusal to issue, but still didn’t get him sued. That’s because no one has asked him to issue a marriage license either.

So while Schwartz and Casey Davis continue to not issue licenses, mostly because no one has asked for one, should they actually refuse service to a same-sex couple, they could find themselves facing lawsuits and contempt of court charges, just like Kim Davis.

Schwartz hasn’t commented to the press, but Casey Davis said a lawsuit wouldn’t change his mind.


In Texas, the number of county clerks publicly refusing to issue licenses has dwindled to one, according to former state Rep. Glen Maxey, who has been keeping count.

“Only one clerk is still saying she will not issue a license, in the mode of Kim Davis,” Maxey said.

That clerk is Molly Criner from Irion County, west of San Angelo.

Other clerks followed the lead of Hood County Clerk Katie Lang, who relented after a same-sex couple filed suit against her. But Lang is still on the hook for $44,000 in attorney’s fees in connection with that suit.

Maxey said less than a dozen Texas clerks were resisting issuing licenses after the Supreme Court ruled for marriage equality, and those few were mostly in counties that issue only a few marriage licenses a year to any couple anyway.

All of them, with the exception of Criner, eventually said they would issue the licenses if someone applied.

Maxey said yard signs have popped up in Irion County that read, “Thank you Molly for standing with God.” Meanwhile, Maxey said, he hasn’t heard from any same-sex couples who’ve traveled to the county and were denied a license.

Judge Orlando Garcia decided the Texas marriage equality case and has heard complaints of noncompliance with the Supreme Court’s decision since the Obergefell decision. In an August hearing, he specifically asked if any county clerks in Texas were denying licenses and was ready to issue an order to bring those clerks into compliance.


One other state has resisted the Supreme Court’s decision.

At least nine counties in Alabama have stopped issuing any marriage licenses. And again, no federal lawsuits have been filed.

But the law in Alabama differs from Kentucky law.

In Kentucky, the law says county clerks must issue marriage licenses. Alabama law gives probate judges the task of issuing marriage licenses, but says those probate judges may issue them. Judges in nine counties have said same-sex couples can go to other counties to get their licenses.

Should a probate judge be sued in federal court, a U.S. district judge may order that judge to begin issuing licenses.

In 1959, a school district in Virginia closed all of its public schools rather than integrate and issued vouchers for private schools. No private schools in that county accepted black children.

That tactic was thrown out by the U.S. Supreme Court, which ruled that even though parents could send their children to private school or public schools in other counties, the action violated the Equal Protection Clause of the 14th Amendment.

Alabama’s protest of same-sex marriage has been going on longer than in Texas or Kentucky.

Alabama became the 37th state to legalize same-sex marriage in February 2015 when U.S. District Judge Callie Granade declared Alabama’s marriage law unconstitutional and the U.S. Supreme Court refused to stay the decision by a 7-2 decision.

Marriage equality in the state was interrupted when Alabama Supreme Court Chief Justice Roy Moore halted probate judges from issuing licenses, citing state law — the law Granade overturned.

Probate judges in 47 of the state’s 67 counties stopped issuing licenses.

In June, the Alabama Senate passed a law eliminating marriage altogether in the state. That bill never made it to the governor’s desk.

Instead, most county probate judges have complied with the U.S. Supreme Court, including those in the state’s major cities, while nine remain holdouts.

Those nine holdouts will continue to refuse to issue marriage licenses until couples affected decide to sue in federal court.

This article appeared in the Dallas Voice print edition September 11, 2015.

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