Governor-elect of Kentucky, Matt Bevin, gave a brief press conference yesterday at the Capitol in Frankfort.
Among the items he discussed, he put forward a plan to issue an executive order that would remove the names of county clerks from all marriage licenses.
According to the Louisville Courier-Journal, Bevin remarked “one thing I will take care of right away, we will remove the names of county clerks from the marriage forms. That is going to be done. The argument that that cannot be done is baloney.”
The article went on:
One thing Bevin said he will do quickly is issue an order that addresses the situation of Rowan County Clerk Kim Davis, who was jailed by a federal judge in September for refusing to issue marriage licenses to same-sex couples despite a U.S. Supreme Court order legalizing such marriages.
Outgoing Gov. Steve Beshear has said only the General Assembly can make such a change, and Beshear declined to call a special session of the legislature to change the marriage licensing form and procedure.
But Bevin said Friday, “We’ve already changed those forms three times for crying out loud. … I do intend to make that change. We will take the names off of those forms. We will do that by executive order. We will do it right out of the gate.”
Bevin said the changes will allow a marriage license to be filed and recorded with a clerk like other legal documents such as mortgages or deeds without the clerk being the issuer. “This is one way that we will remove something from the landscape that frankly doesn’t even need to be there.”
Asked for a response to Bevin, Beshear spokesman Terry Sebastian referred back to Beshear’s earlier statements that the General Assembly has by law given the duty to issue marriage licenses to clerks and that a governor cannot change a law by executive order.
I’m not a lawyer, so I can’t parse all the complexities as to Bevin’s authority to issue such an order. If I had to guess, Bevin will in fact issue the executive order and there will not be any or much protest by his opponents because, frankly, executive orders of such nature are anodyne. We’re talking about something as innocuous as taking a name off a form that in no way changes the binding authority of the form in question. Secondly, there’s widespread consensus that it would be better for all parties involved to put the matter to rest—issue fatigue—as some might call it.
But for the sake of argument, let’s say the executive order is legitimate. Bevin’s executive action would be commendable. It demonstrates that Kim Davis never needed to be jailed because reasonable accommodations were available without excessive consequences being necessary. Governor Beshear simply failed to act on her behalf. Beshear, the lesser magistrate in the fallout after Obergefell, didn’t attempt any measure to resolve the dispute.
As Russell Moore and I wrote at the time of the controversy:
Kentucky Governor Steve Beshear, whose veto of a 2013 Religious Freedom Restoration Act was overturned by the Kentucky legislature, has stood idly by and offered no relief, despite pleas from thousands of Kentuckians who’ve asked him to provide leadership and seek legislative compromise in this conflict. This inaction on the part of the governor represents gross indifference to his duties as governor. Governor Beshear could, and indeed, should, immediately convene a specially called legislative session to resolve this issue that provides accommodations for objecting clerks with the assurance that all legal licenses are lawfully issued.
If Bevin can issue an executive order, so could Beshear—a much easier and cheaper method than convening a special session of the legislature. I can’t impugn the motive of Governor Beshear, but I can criticize he and his administration’s failure to act.
If this executive order happens as is planned, it will resolve all the consternation at the heart of the conflict: County clerks like Kim Davis will have their conscience protected as her name will not be on any license granting moral legitimacy to an institution that he or she believes is immoral; and, second, the lawful issuance of government licenses will continue without disruption. But, admittedly, it takes two parties to reach compromise. Kim David would need to abide by this policy of removing her name from such documents, a move that I believe people of goodwill believe is a reasonable and acceptable accommodation. This was not difficult to resolve. I repeat: This was not difficult to resolve. It simply took political de-escalation, and political will coupled with the pursuit of commonsense legal maneuvers. The troubling factor is that it took a political election to resolve what should have been the responsibility of any governor regardless of political persuasion and regardless of one’s personal views on the moral rightness of same-sex marriage.
What this whole incident reminds us of is that in the long game on religious liberty, the pursuit of reasonable accommodations is the responsibility of every government official and every government body. Hopefully Governor-elect Bevin’s move puts the issue to rest and sets an example moving forward. “Politics is the art of the possible,” as the famous phrase goes. It turns out it remains true.