Did an incarcerated Kentuckian have to appear at the county clerk's office to get a marriage license?

Plain-English summary

Nelson County's attorney asked whether both marriage-license applicants had to appear at the county clerk's office when one was jailed. The Attorney General said an in-person requirement could prevent inmates from exercising their constitutional right to marry. It concluded that clerks could not require the inmate's personal appearance even though the 2018 amendment to KRS 402.210 required both parties to be “present” when a license was issued.

The opinion kept the statute's age-verification purpose in view. It described alternatives such as a warden's age certification or an affidavit and noted an addendum form clerks had accepted from incarcerated applicants. The AG said clerks had to verify age without making office attendance a condition for an inmate.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the opinion exempt inmates from the marriage-age requirement?

No. The AG said clerks still had to verify an incarcerated applicant's age. Its conclusion concerned how to do that without requiring an appearance at the clerk's office.

Why did the AG reject an office-appearance requirement?

It relied on the constitutional right to marry and a federal district court decision that rejected requiring an incarcerated applicant to apply in person when other ways to verify eligibility were available.

Did the opinion identify alternatives to appearing at the clerk's office?

Yes. It discussed a warden certifying age, an applicant affidavit, and an addendum form that Kentucky clerks had accepted from inmates before the amendment.

Background and statutory framework

The 2018 amendment to KRS 402.210 added presence and proof-of-age language as part of a law addressing child marriage. The AG read those requirements against cases protecting an inmate's right to marry, including the federal district court's decision cited below. It concluded that the presence language would be unconstitutional as applied to incarcerated applicants if it required them to come to the clerk's office.

Citations

• KRS 402.210(1)(a) (presence language).
• KRS 402.210(1)(a)-(b) (presence and proof of age).
• Jones v. Perry, 215 F. Supp. 3d 563, 569 (E.D. Ky. 2016) (inmate license application).

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Pages/Opinions.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2019-022.pdf

Original opinion text

OAG 19-022

November 15, 2019

Subject: Whether KRS 402.210(1)(a) requires the presence of both
parties applying for a marriage license when one or both of those individuals is an inmate.

Requested by: Matthew Hite
Nelson County Attorney

Written by: Marc G. Farris
Assistant Attorney General

Syllabus: County clerks must issue marriage licenses to inmates
without requiring the inmates to apply in person.

Statutes construed: KRS 402.210

OAGs cited: OAG 82-416

Opinion of the Attorney General

The Nelson County Attorney has requested an opinion interpreting KRS 402.210(1)(a), which requires that “[b]oth parties of the marriage shall . . . [b]e present for a marriage license to be issued. . . .” Specifically, he asks whether both parties must appear in person at the county clerk’s office to apply for a license when one of the parties to the marriage is an inmate at the Nelson County Jail. Because such a requirement would prevent inmates from exercising their constitutional right to marry, clerks may not require both parties to the marriage to apply in person for the license if one of the parties is incarcerated, notwith- standing the language of KRS 402.210(1)(a).

Page 2

OAG 19-022
Page 2

KRS 402.210(1)(a)

In 2018, the General Assembly passed, and the Governor signed, Senate Bill 48, “AN ACT relating to child marriage.” SB 48 amended KRS 402.210 to prohibit marriage by anyone under the age of 17, and to require a court order for 17 year olds to marry. See 2018 Ky. Acts Ch. 36 (2018 SB 48), § 4; KRS 402.210(2)- (3). To ensure compliance with these provisions, SB 48 added a new requirement that both parties to the marriage license “[b]e present for a marriage license to be issued,” and “[p]resent to the county clerk” one of the nine forms of “documen- tary proof of age” listed by the statute. KRS 402.210(1)(a)-(b).

The Constitutional Right to Marry

It is well-established that inmates enjoy a constitutional right to marriage.
The right to marry is “one of the vital personal rights essential to the orderly pursuit of happiness by free men [and women].” Loving v. Virginia, 388 U.S. 1, 18 (1967). Due to the importance of this right, courts apply “strict scrutiny to any law or policy that places a ‘direct and substantial burden’ on the right to marry.” Jones v. Perry, 215 F. Supp. 3d 563, 569 (E.D. Ky. 2016) (quoting Vaughn v. Law- renceburg Power Sys., 269 F.3d 703, 710 (6th Cir. 2001)). In applying strict scrutiny, courts examine whether the law or policy is “supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Zablocki v. Redhail, 434 U.S. 374, 388 (1978). A policy “places a ‘direct and substantial bur- den’ on this right when ‘a large portion of those affected by the rule are absolute- ly or largely prevented from marrying, or whe[n] those affected by the rule are absolutely or largely prevented from marrying a large portion of the otherwise eligible population of spouses.’” Jones, 215 F. Supp. 3d at 569 (quoting Vaughn, 269 F.3d at 710).

In Jones, the fiancé of a woman incarcerated at the Kentucky Correctional Institute for Women brought suit against the Shelby County Clerk, who had declined to issue a marriage license based on guidance from the Kentucky De- partment of Libraries and Archives (“KDLA”) that “the county clerk in each county must have both parties sign the application and both must be present at that time.” Id. at 566 (citation omitted). The KDLA had reasoned that Kentucky law required the presence of both parties to the marriage license because the marriage license form had signature lines for both parties to the marriage, and

Page 3

OAG 19-022
Page 3

KRS 402.110 stated that “clerks must ‘see to it that every blank space required to be filled by the applicant is so filled before delivering’ a marriage license.’” Id. (citation omitted).1

The clerk argued that the requirement furthered an important state interest of verifying the eligibility of the marriage applicants—specifically, by deterring dishonesty by applicants, permitting the clerk to observe the appli- cant’s demeanor, and by allowing the clerk to determine any “disqualifying characteristics that are readily observable in person.” Id. at 572-73. The court rejected that argument because “many alternative methods could just as easily effectuate that interest.” Id. at 573. The court suggested that a deputy clerk could travel to the prison, that the clerk could deputize a prison employee for the purpose of completing marriage licenses, or that the incarcerated person could complete a sworn affidavit attesting to the veracity of his or her statements on the marriage license. Id. The court therefore enjoined the clerk from refusing to issue the marriage license.

County Clerks May Verify Age Without Preventing Inmates From Marrying

In light of Jones and the cases cited therein, we are confident that a court would hold KRS 402.210(1)(a) unconstitutional as applied to incarcerated per- sons. See Jones, 215 F. Supp. 3d at 572-73; Amos v. Higgins, 996 F. Supp. 2d 810, 813 (W.D. Mo. 2014) (Missouri statute requiring each applicant to sign the mar- riage application in the presence of the recorder of deeds or their deputy is “unconstitutional as applied to situations where an applicant for a marriage license is unable to appear…due to their incarceration”).

1 In 1982, our Office had similarly interpreted the marriage laws to require in-person application

by both parties to the marriage. See OAG 82-416 (“The application should be made by the applicants in person in the clerk's office.”). In 2009, the Education and Workforce Development Cabinet sought updated guidance on that issue. Because that request was made in anticipation of litigation, our office did not issue an opinion, but we did provide a letter to the Cabinet setting forth our view that intervening case law made clear that inmates had a right to marry and that prison officials could not refuse to assist the inmates in doing so unless their refusal was “reason- ably related to legitimate penological interests.” Letter of Attorney General, Jones v. Perry, No. 3:16-cv-00051-GFVT-EBA (E.D. Ky. 2016) ECF 8-1 (citing Toms v. Taft, 348 F.3d 519, 527 (6th Cir. 2003)).

Page 4

OAG 19-022
Page 4

While KRS 402.210(1)(a) serves the important state interest of preventing potentially exploitative underage marriage, it is not narrowly tailored to further- ing that interest, at least as applied to inmates. As the Jones court observed, clerks may use other methods to verify that the marriage license applicant is of age without infringing the applicant’s right to marriage. For instance, the age of the inmate is known to the warden, who could certify that the person is of age to marry.

Another alternative would be to permit applicants to complete an affida- vit. We understand that before the passage of SB 48 (2018) and consistent with the Jones decision, county clerks across the state developed a form of “Adden- dum to a Marriage License,” which they accepted in lieu of personal appearances from inmates. Among other things, that form required incarcerated marriage license applicants to provide their name, age, and date of birth. The Addendum therefore accomplishes the purpose of KRS 402.210(1)(a) by ensuring that the applicants are of legal age, without unduly interfering with the incarcerated applicants’ exercise of their constitutional right to marry.

In sum, clerks must endeavor to assist inmates in exercising their constitu- tional right to marry. Clerks may not require inmates to appear in person before issuing a marriage license. Instead, clerks must accomplish the purpose of KRS 402.210 by verifying an incarcerated applicant’s age without requiring the appli- cant to appear in person.

ANDY BESHEAR
ATTORNEY GENERAL

Marc G. Farris
Assistant Attorney General