Research Corner


Tying the C


By Keia Johnson


ounty Clerks have specific du- ties in the context of marriage, the majority of which are tech- nical functions, such as recording


and filing marriage licenses. However, due to the complexity of marriage and emerging issues such as same sex marriages and the marriage of foreign citizens and military personnel, County Clerks must also perform judgment and discre- tionary duties where Arkansas laws have not yet been modified to fully address societal changes. A major role of the AAC is to provide guid- ance to county officials in performing their offi- cial duties. Where the law is silent, it is our duty to respond with the best interpretation possible. Te director and staff of AAC are frequently presented questions from County Clerks unsure of their duties when issuing Arkansas marriage licenses. Terefore, in an effort to assist these men and women, this article will be dedicated to answering a few of their most common ques- tions. Te answers to all questions come from Arkansas Attorney General opinions, case law and the most recent Arkansas Code. It is our sincere hope that this section will


help County Clerks decipher when a citizen’s “I do” translates into the clerk’s “I can’t”. (A full breakdown of marriage duties is now available to all County Clerks as of this month. Please email lawclerk1@arcounties.org to submit further ques- tions).


❥ Question 1: Who may perform the marriage ceremony and how do I ensure the accuracy of their credentials?


❥ Answer: Under A.C.A § 9-11-213, per- sons who may solemnize marriages are: (1) Te governor; (2) Any former justice of the Supreme Court; (3) Any judges of the courts of record within this state, including any former judge of a court of record who served at least four years


30 A Clerk’s Guide To Knot


or more; (4) Any justice of the peace, includ- ing any former justice of the peace who served at least two terms since the passage of Arkansas Constitution, Amendment 55; (5) Any regularly ordained minister or priest of any religious sect or denomination; (6) Te mayor of any city or town; (7) Any official appointed for that pur- pose by the quorum court of the county where the marriage is to be solemnized; or (8) Any elected district court judge and any former mu- nicipal or district court judge who served at least four years.


Government officers listed above are auto- matically credentialed to solemnize marriages as a part of the duties of their office. Religious members are authorized to solemnize marriages, regardless of denomination, however not until that minister or priest has had their license or clerical credentials recorded by a County Clerk within the state of Arkansas. Te clerk and re- corder must record all licenses or credentials of priests and ministers filed with them for his or her record. Failure to record properly will re- sult in a ($100) fine against the clerk. A.C.A. 9-11-214. Recordation of credentials of clerical character.


❥ Question 2: What penalty will I face if a mistake is made in the issuing of a mar- riage license?


❥ Answer: Tere are penalties for a Coun-


ty Clerk’s failure to adhere to procedures and guidelines of issuing marriage licenses. Penal- ties can range from $500 fines to misdemeanor charges or both, nevertheless the laws are written not to penalize clerks for human error, but to discourage them from participating in the issu- ance of marriage licenses without adherence to protocol and procedure. For instance, the issuance of a marriage li- cense to an under-aged citizen is only an issue if the clerk failed to request identification, proper under the state statute. If the clerk is provided


accurate identification in the form of what appears to be a legitimate birth certificate and or driver’s li- cense and the information is deemed fraudulent at a later date, the under-aged person is deemed guilty of a misdemeanor and the license is void. However, if the clerk performed, with due dili- gence, all the duties of his or her position under the statute the clerk has not violated the statute. It should be noted that most recently; Coun-


ty Clerks have been concerned with the issuance of marriage licenses to same-sex couples who have used a lawfully issued driver’s license to serve as proof of age and gender. Arkansas law does not state in any statute that proof of gender is necessary in order to obtain a legitimate mar- riage license. However, under A.C.A. 9-11-208, same-sex marriages are strictly prohibited. “It shall be the declared public policy of the State of Arkansas to recognize the marital union only of man and woman. No license shall be issued to persons to marry another person of the same sex and no same-sex marriage shall be recognized as entitled to the benefits of marriage.” Any license issued to a same sex couple is au- tomatically void upon receipt. Terefore, it is not the duty of the County Clerk to ensure that a man or woman is indeed a man or woman, as state law has not yet specified a means by which it would be plausible to accomplish such a goal. However, if a clerk is unsure that an applicant meets the requirements to be issued a marriage license, the clerk may ask for a birth certificate to verify credentials, as it is the only prima facie proof listed that a clerk must accept as true and


COUNTY LINES, WINTER 2011


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