Solving Miller v. Davis: Licenses in Rowan County explicitly authorized by a different county clerk?

Different people have been dismayed by different aspects of the transition to same-sex marriage licensing in Rowan County, Kentucky. But just about everyone recognizes that there must have been, and still must be, a better way. So here's a shot at solving the case of Miller v. Davis. 

Here are the constraints/objectives: 

(1) Everyone who is eligible should be able to obtain a marriage license in Rowan County.

(2) Nobody should be forced to act in violation of his or her conscience.

(3) Nobody should act outside the law. 

This should not be terribly difficult. There is a statewide infrastructure in place for getting marriage licenses to eligible couples. Every county clerk's office has the same prescribed form. And any county clerk can issue a marriage license. That is, there is no requirement that a person obtain a license from the county where he or she lives. 

We also know from events on the ground that at least one deputy clerk in Rowan County is willing to accept license applications, fill out all the paperwork, and issue the licenses. According to the testimony at a preliminary injunction hearing, this process takes about five to seven minutes. 

One problem with how things are going right now is that the licenses issued by the deputy clerk are not authorized by the Rowan County clerk, Kim Davis.

Davis has suggested applicants should drive to another county. This may be less than an hour round-trip. But it fails constraint (1).

The applicants have said the clerk should just authorize the licenses even though this violates her conscience. That fails constraint (2).

The clerk has also suggested various other accommodations, such as a change in the prescribed form. But she lacks the authority to change the form. And the judge hearing the case has not seen fit to join the state official that has this authority.

But let's work with this a bit more. What can Kim Davis do to facilitate the issuances of licenses within Rowan County without violating her conscience? There are two features of the process to focus on here: Davis's name and Davis's authority.

Look at this interchange from the July 20, 2015 preliminary injunction hearing: 

THE COURT: All right. You just object to your name being on the license?

THE WITNESS: My name and my county, yeah.

THE COURT: Well, your county, you're elected by the county. But if it said Rowan County and listed a deputy clerk -- let's say the deputy clerk that would be permitted to, or has agreed that he or she would not be religiously opposed to issuing the license, if it just was the deputy clerk's name with Rowan County and not your name, would you object to that?

THE WITNESS: It is still my authority as county clerk that issues it through my deputy.

THE COURT: All right. Very well. You may step down. Thank you.

And now we come to constraint (3). Can the deputy clerk in Rowan County issue licenses that are not authorized by Kim Davis? Maybe yes and maybe no. Depends on what we mean by "authorized." The deputy clerk cannot issue licenses purportedly under Davis's authority when she has not granted that authority. But why can't the deputy facilitate the issuance of licenses under the authority of another county clerk?

Kentucky law provides that any county clerk can issue a marriage license when application is made in person or by signed writing by someone 18 years or older. (The statute focuses on the female's age, but presumably that should be understood and applied gender neutrally post-Obergefell.)

So a couple walks into the Rowan County Clerk's office. They seek a marriage license and are referred to a willing deputy (such as Brian Mason). He takes down their information, gets their signatures, and generates a license on the prescribed form. Near the top of the form, right after "you are hereby authorized," he writes in the name of another county clerk who has authorized him to issue that license. Why wouldn't this work?

One question is how the deputy clerk gets authorization from another county clerk. There are probably many ways this could be done. Perhaps the simplest would be some type of single-purpose power-of-attorney. Another might be a blast email to all county clerks on a case-by-case basis, saying "I have a signed application that satisfies all the statutory requirements. Can someone authorize this license?"

Another question is whether there are any obstacles in Kentucky law that cannot be overcome without a change in the law. I'm not aware of any, but welcome any pointers.

Another question is whether Kim Davis would go along with this. This is about one hour a week worth of employee duties. She probably should go along with this. It satisfies the conscience constraints that she's articulated thus far, as I've been able to tell from the filings. The key is to make clear that the license is not being issued under her authority as county clerk, but under some other county clerk's authority. [UPDATE: Davis's response in opposition to a preliminary injunction [Dkt. 29 at 13] seems to welcome precisely such an arrangement: "Davis is ... not claiming that her religious freedom is substantially burdened if the license were issued by someone else in Rowan County (e.g., a deputy clerk), so long as that license is not issued under her name or on her authority."]

Applicants might object on constitutional grounds, saying that they are being differently treated. But particularly if all marriage applications are handled this way in Rowan County, it's hard to see why that should be a winning constitutional claim. 

So, can we make this work? What are your suggestions for solving Miller v. Davis?