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This isn’t the first time local officials have refused to grant marriage licenses to a new kind of couple AP

Yesterday I wrote a column here at Rare on the subject of Kim Davis, the Kentucky county clerk who was just released from jail after refusing to issue licenses for same-sex weddings with her name on them. I argued that, as a Christian, Davis is obliged to obey God to the best of her understanding—and if that means she can’t in good conscience issue licenses as her job requires, the principled move is to resign.

Since then, as Davis’ saga continues, I’ve run across a few additional pieces of information relevant to this case.

First, as a friend pointed out to me on Facebook, Davis’ specific objection is to having her name on the licenses. She feels that this would be an endorsement of the marriages in question, which she cannot do. So her proposed solution is to just put her title on the forms instead:

Davis’s objection, it appears (see pp. 40, 133, and 139 of her stay application and attachments), is not to issuing same-sex marriage licenses as such. Rather, she objects to issuing such licenses with her name on them, because she believes (rightly or wrongly) that having her name on them is an endorsement of same-sex marriage. Indeed, she says that she would be content with, “Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form.”

I can’t say this line of reasoning makes much sense to me. She’s still the one issuing and approving the form, after all. But hey, if that’s an accommodation that Kentucky is willing to make and would allow Davis to return to doing all the parts of her job without violating her conscience, it seems like a good solution. Of course, depending on the time it takes to put that proposal into effect, she may still need to resign and then run for reelection after the change has gone through.

Second, it occurred to me that half a century ago there was another landmark Supreme Court ruling on marriage in which the court concluded that equal protection under the law meant overriding state laws limiting who could be married. That ruling was Loving v. Virginia (1967), which legalized interracial marriage nationwide.

Now, there is room to disagree over comparisons between the civil rights movement of the 1960s and the modern fight to legalize gay marriage, but in this case I think the comparison is pretty useful. In fact, many of the most prominent arguments against allowing interracial marriage were religious in nature. In the Virginia court ruling SCOTUS overturned, the judge wrote that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

After the ruling, local officials in some states that had anti-miscegenation laws on the books before Loving still refused to give marriage licenses to interracial couples:

In theory, the Loving ruling meant all anti-miscegenation laws in the United States were invalidated. At the time, more than a dozen states had such laws on the books. But three years later, when Sgt. Louis Voyer (who was white) and Phyllis Bett (who was black) tried to get married in Alabama, they were refused a license by Probate Judge C. Clyde Brittain, on the basis that Alabama law would have made such a license criminal. In fact, Alabama law still made Voyer and Bett’s coupledom criminal in itself, and the Alabama constitution actively barred state lawmakers from legalizing marriage between “any white person and a Negro, or descendant of a Negro.”

In the resulting 1970 case United States v. Brittain, the district court ruling was extremely straightforward: there was no question that the Alabama laws in question were unconstitutional and that Voyer and Bett had the right to marry.

It’s worth noting that Brittain was making a different claim than Davis is making. Davis could be making the exact same argument—that, “on God’s authority,” she cannot put her name on a same-sex marriage license, though she does not object to those marriage licenses being issued otherwise—if Kentucky itself had legalized gay marriage. Brittain was making a less religious and more legal argument about whether Alabama law overrode the Supreme Court’s ruling.

Nevertheless, the similarities between the two cases are enough that, if Kentucky is not willing to take the relatively simple route of changing the form to feature the clerk’s title rather than name, this could be the beginning of a long series of court battles. U.S. v. Brittain was hardly the only legal challenge to the SCOTUS ruling for a constitutionally protected right to interracial marriage, and Alabama technically had its anti-miscegenation law on the books until 2000.

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