You mean severance clause.
When a law is passed by the legislature that includes some provision that is found to be unconstitutional, the entire statute that contains the governor's signature is voided and the legislature then needs to rewrite the law and get it passed. If there was another previous statute that was overturned or amended when the unconstitutional law was passed, then that statute goes back into effect.
Courts strike down state (and local) laws all the time, every day, across the country. Sometimes federal courts do it. Sometimes state courts do it. Sometimes they are criminal laws. Sometimes they are civil laws. In some situations, it may even involve a provision found in a state constitution.
A court can strike down all of a law (if applicable to the circumstances). A court can rule narrower, striking down only part. This is by no means a black/white, 100% of the time this way or that way, kind of thing. So many variables can potentially go into why something may or may not get struck down and to what degree.
If you don't know already, the answer to any legal question is - "it depends".
You say courts do not have a "line item veto". Of course, as you know, that is the wrong terminology. But, as far as the idea, sometimes they essentially do. And they do it all the time. To say an entire law gets thrown out 100% of the time anytime a court strikes it down - with or without a severance clause - is not reflected in reality whatsoever.
Sometimes, in fact, it is necessary to pass new legislation before the government function or duty can be resumed following an adverse court ruling. But not always. Not by a long shot. That would be absolute judicial and legislative chaos.
So those states that have those words are currently operating either under a previous law that did not contain those provisions or they are operating without any marriage laws whatsoever.
Again, you have this wrong.
Tell you what, since you are advancing this "theory", why not contact Davis's lawyers with this finding of yours that apparently has escaped every conservative legal scholar, law professor, former/current judge, former/current prosecutor, etc?
People playing armchair attorney and saying Kim Davis has no law to operate under embarrass themselves.
Ky. Rev. Stat. 402.105 Marriage license valid for thirty days. A marriage license shall be valid for thirty (30) days, including the date it is issued, and after that time it shall be invalid.
Ky. Rev. Stat. 402.020(1)(c)Marriage is prohibited and void when not solemnized or contracted in the presence of an authorized person or society;
Ky. Rev. Stat. 402.050(1)(b) Marriage shall be solemnized only by ... Justices and judges of the Court of Justice, retired justices and judges of the Court of Justice except those removed for cause or convicted of a felony, county judges/executive, and such justices of the peace and fiscal court commissioners as the Governor or the county judge/executive authorizes
Ky. Rev. Stat. 402.220 Return of license and certificate to clerk after ceremony. The person solemnizing the marriage or the clerk of the religious society before which it was solemnized shall within one (1) month return the license to the county clerk of the county in which it was issued, with a certificate of the marriage over his signature, giving the date and place of celebration and the names of at least two (2) of the persons present.
Ky. Rev. Stat. 402.230 Filing of marriage certificate — Record of marriages. The certificate shall be filed in the county clerk’s office. The county clerk shall keep in a record book a fair register of the parties’ names, the person by whom, or the religious society by which, the marriage was solemnized, the date when the marriage was solemnized, and shall keep an index to the book in which the register is made.
Ky. Rev. Stat. 402.005 Definition of marriage. As used and recognized in the law of the Commonwealth, "marriage" refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.
Ky. Rev. Stat. 402.010 Degree of relationship that will bar marriage. (1) No marriage shall be contracted between persons who are nearer of kin to each other by consanguinity, whether of the whole or half-blood, than second cousins. (2) Marriages prohibited by subsection (1) of this section are incestuous and void.
Ky. Rev. Stat. 402.020 Other prohibited marriages.
(1) Marriage is prohibited and void:
(a) With a person who has been adjudged mentally disabled by a court of competent jurisdiction;
(b) Where there is a husband or wife living, from whom the person marrying has not been divorced;
(c) When not solemnized or contracted in the presence of an authorized person or society;
(d) Between members of the same sex;
(e) Between more than two (2) persons; and
(f) 1. Except as provided in subparagraph 3. of this paragraph, when at the time of the marriage, the person is under sixteen (16) years of age;
2. Except as provided in subparagraph 3. of this paragraph, when at the time of marriage, the person is under eighteen (18) but over sixteen (16) years of age, if the marriage is without the consent of:
a. The father or the mother of the person under eighteen (18) but over sixteen (16), if the parents are married, the parents are not legally separated, no legal guardian has been appointed for the person under eighteen (18) but over sixteen (16), and no court order has been issued granting custody of the person under eighteen (18) but over sixteen (16) to a party other than the father or mother;
b. Both the father and the mother, if both be living and the parents are divorced or legally separated, and a court order of joint custody to the parents of the person under eighteen (18) but over sixteen (16) has been issued and is in effect;
c. The surviving parent, if the parents were divorced or legally separated, and a court order of joint custody to the parents of the person under eighteen (18) but over sixteen (16) was issued prior to the death of either the father or mother, which order remains in effect;
d. The custodial parent, as established by a court order which has not been superseded, where the parents are divorced or legally separated and joint custody of the person under eighteen (18) but over sixteen (16) has not been ordered; or
e. Another person having lawful custodial charge of the person under eighteen (18) but over sixteen (16), but
3. In case of pregnancy the male and female, or either of them, specified in subparagraph 1. or 2. of this paragraph, may apply to a District Judge for permission to marry, which application may be granted, in the form of a written court order, in the discretion of the judge. There shall be a fee of five dollars ($5) for hearing each such application.
(2) For purposes of this section "parent," "father," or "mother" means the natural parent, father, or mother of a child under eighteen (18) unless an adoption takes place pursuant to legal process, in which case the adoptive parent, father, or mother shall be considered the parent, father, or mother to the exclusion of the natural parent, father, or mother, as applicable.
etc.
From Obergefell:
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Why should age be any limitation? Why should there be any consanguineous limitations?
Surely this is discriminatory, a violation of equal protection, etc.
In Kentucky a couple under 16, with a pregnant female, may marry with a judge’s permission and $5.00 payment. Ky. Rev. Stat. 402.020(1)(f)(3). In New York marriage where either party is under the age of 14 is prohibited. N.Y. Dom. Rel. § 15-a. If two Kentucky 14 year olds, expecting a child, elope to New York they will not be able to marry. In NY any person issuing a license for such marriage “shall be guilty of a misdemeanor and on conviction thereof shall be fined in the sum of one hundred dollars.” Why haven't the Philosopher Kings straightened this out?
Since the Supreme Court has arrogated to themselves the power to legislate, the power to commandeer State legislatures, why haven’t they provided a uniform marriage code for the entire United States? Why are they disrespecting the idea of marriage, “the highest ideals of love and devotion”?
Marlowe is a lawyer. Long time. Successful. And ‘saving clause’ is a synonym for ‘severance clause’. Look it up.
As it stands right now there is no LAW that authorizes Kim Davis to issue a marriage license to a same sex couple. If there is such a LAW please give me the statutory cite.
A county clerk is an administrative position and she is only authorized to follow the law as written. She is in jail because she will not violate the law.
In this case the judge has no authority to send her to jail. She has committed no crime.