If a county clerk refuses to issue a marriage license to a same-sex couple based on religious objections, the First Amendment of the U.S. Constitution allows them that right, Texas Attorney General Ken Paxton said Sunday. The same goes for county clerk employees and judges that preside over weddings.
Clerks that refuse to perform their duties may face lawsuits and fees, Paxton acknowledged, “But, numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights.”
The U.S. Supreme Court’s historic ruling Friday morning granted same-sex couples the right to marry in all 50 states, but lawmakers in several states – including Texas, Mississippi, Alabama, Louisiana, Utah, and Tennessee – are resisting the new law of the land.
The Bexar County Clerk began issuing licenses to same-sex couples around noon on Friday.
Paxton issued his formal opinion in response to Lt. Gov. Dan Patrick’s call for guidance on the matter on Friday afternoon. Patrick wanted to know if the so-called “pastor protection act,” which reaffirms rights of clergy members to refuse same-sex marriages, could be extended to county clerks and their employees, judges, and justices of the peace. Gov. Greg Abbott preceded Patrick’s request by issuing a memo directing state agencies to “preserve, protect and defend the religious liberty of every Texan.”
Paxton’s non-binding legal opinion is: Yes.
“County clerks and their employees possess constitutional and statutory rights protecting their freedom of religion,” Paxton wrote. “And employees possess rights under state and federal law to be free from employment discrimination on the basis of religion.”
However, the issue will likely be resolved in court if and/or when a clerk gets sued for refusing to issue a license. The high court’s ruling also means that public and private employee benefits must now be extended to same-sex marriages by law – which is also being challenged as a religious freedom issue.
“There will be lawsuits,” said San Antonio lawyer Neel Lane at a news conference in Austin, according to Dallas News reporter Robert T. Garrett.
“You cannot deny a citizen’s rights under color of state law,” which means an official’s action performed as part of his government duty, Lane said during a news conference in Austin. “I’m astonished that the chief executive of Texas is encouraging state officials not to follow the law based on religious beliefs.”
According to the Texas Observer, only 18 of Texas’ 254 counties were issuing licenses on Friday. Some hold-out counties were waiting for new, genderless marriage applications/forms from the state, others were waiting for direction from Attorney General Paxton – which they received on Sunday.
Early Monday morning, state Rep. David Simpson (R-Longview) asked Gov. Abbott to call a special legislative session to stop all marriage licenses in the state – for both opposite and same-sex couples.
“In its place, the process of issuing a certificate of marriage will be performed by any willing clergy member consistent with their conscience and in respect for our culture and our heritage. For those who do not wish to have a religious ceremony, any authorized notary may approve a certificate,” Simpson stated in a news release. “In light of the Supreme Court’s actions, I believe that the best way to protect marriage is to divorce marriage from government.”
It seems far-fetched to many, but a Utah representative has also drafted similar legislation that would end the state’s involvement with marriage entirely.
According to Salt Lake City’s FOX 13, Utah state Rep. Jake Anderegg (R-Lehi), who supports the concept but did not author the bill, acknowledged that passing such legislation “would be a monumental task” as there are dozens of laws and benefits tied to marriage including those relating to social security, taxes, immigration, health benefits, probate, and inheritance.
North Carolina already has a law on the books that allows public employees to opt-out of the licensing process for same-sex marriages. The law does not explicitly say anything about gay marriage, instead it allows such employees to “recuse” themselves from the process without reprimand. While other conservative states consider doing the same, it comes as a surprise to many that this kind of law can exist – aren’t state employees required to do their job? Would a racist employee be allowed to “opt-out” of serving an inter-racial marriage license if they had a “sincerely held religious objection?”
These questions will likely come up when and/or if it’s challenged in court as unconstitutional, but it will be a tricky, uphill battle.
*Featured/top image: Elizabeth Mosely (left) and Gabby Bonar apply for their marriage license at the Bexar County Courthouse with their 5-month-old son, Langston, on June 26, 2015. Photo by Scott Ball.
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I wish I was single and gay just so I could challenge Paxton in court. I hope he gets his ass sued over and over and over.
I see the refusal to conduct government authorized civil duties as not protected by the First Amendment. The SC case was not a religious case. As well, The AG of Texas has now placed an undo burden upon County Clerks of Texas who may feel peer pressured in their office. How does that clerk respond to religious pressure. They should respond by saying they are doing as dutifully authorized by the courts. Their beliefs should not be questioned.
Cripes. Can’t we all just get along? I mean, really, is a Christian’s “freedom of religion” compromised by doing his/her job of issuing marriage licenses to loving couples, some of whom have been involved with each other for DECADES awaiting marriage equality?
If that Christian pays state taxes (sales, property, etc.) in TX, then s/he is subsidizing the KILLING of death-row convicts. Uh, I believe there is something in the Bible about killing people — regardless of what they’ve done — is a no-no.
Some pracitioners of Islam hold the religious tenet that women shall not driveth. So, according to Atty Generalissimo Ken Paxton, a Muslim DMV worker has the right to refuse to issue driver’s licenses to women.
Rep. David Simpson (R-Longview) is upholding the tradition of the segregationist politicians who, rather than integrate public swimming pools, closed all the swimming pools to everyone.
“It’s my pool and if I don’t like you, you can’t swim in it!”
“They’re my marriage licenses, and if I don’t like you, you can’t have one!”
This is quite interesting and timely. I just completed a “non-discrimination” training for a state institution in Texas. Part of what we were taught was that if I refuse to conduct my regular BFO duties as an employee (refuse to do my job) my supervisor is not being discriminatory in terminating my employment. So why are we telling state employees that we will support them in refusing to do their job when the Supreme Court has declared that what is being asked of them is legal? If you do not want to do the job you were hired for (issuing a legal license under law), then quit! No one is forcing you to accept this employment contract.
Can we assume these county clerks are going to stop filing divorce papers, as well? Because unlike gay marriage, divorce is very specifically denounced as a sin in the Bible.
Good point, Honza.
I noticed that in the article, the Longview congressman used the term “divorce” when he suggested separating marriage from government.
At every Christian wedding I’ve attended, “until death do us part,” was part of the vows. Sheesh, I assume no civil clerks are giving marriage licenses to any divorced people trying to remarry since Ken Paxton hasn’t issued an “opinion” on that.
PS: In his opinion, Paxton wrote, “It would be curious indeed for an oath that ends with “so help me God” to mandate that the oath-taker set aside those very beliefs.”
Then get rid of the “so help me God” tag, Ken. Yep, that ol’ separation-of-church-and-state thang again….
I learned more about life in Kindergarten than from any conservative politician. Play fair, share, no hitting and clean up after your self.
A few well-placed lawsuits will clear this bullshit up rather quickly
This is really turning into the clown circus. If they can’t keep their religious beliefs in check long enough to hand someone a piece of paper then they should quit or be fired.
I wish these pandering politicians would stop saying “Christians don’t believe in same-sex marriage.” Not every Christian believes as they do. Do they really NOT consider many that belong to large, mainline denominations such as the United Church of Christ, Disciples of Christ, Lutheran Church, or Presbyterian Church to be fellow Christians?
Why do they think they were appointed as the all-knowing arbiter of all things Christian? Fine, they don’t believe the same as me… but why are they trying to prevent the free exercise of MY belief? Rep. Simpson’s proposal does just that.
Just stop… please.
Yes, they DO NOT think the Christian churches that sanction marriages for gay people are legitimate (they are “false prophets and going against the Word of God”) or (they are “fringe groups” – like Unitarians or United Church of Christ, etc., or Jewish).
And yes, they DEFINITELY think THEY are appointed as the arbiters of all things Christians, and you should send your money to THEM, post haste! (before the Rapture, which is soon! particularly now with gay marriage for US, although it’s been in Canada for quite some time, but that’s Canada and I guess God’s not watching as closely there.)
What about a contempt of court charge?
I heard a good question on the radio today: if someone’s religion prohibited women from driving, could that person work at the DPS and only issue licenses to men?
That Hood county clerk should be fired immediately for not performing duties for which she was hired. Look at her contract; does it give exceptions? I doubt it. Get rid of all government employees who refuse to do the jobs for which they were hired. katie Lang is her name.
I was pleased when I heard the news about the Supreme Court’s ruling on marriage equality. But when I saw the local news I noted that the marriage certificates shown on the TV had the phrase “Holy Matrimony” on them.
Can anyone explain this? Holy is a religious concept, not a civil one. Perhaps the certificates need to be rewritten.
Don’t worry. They’ll quiet down once they realize that since SCOTUS has decided corporations are now legally people, and marriage licenses are now legal contracts that can be entered into by any two people, they can avoid the whole “merger review” process by having corporations just get married instead.
Ridiculous? Without a doubt. But just wait.
Corporations are people (have free speech rights) according to another SCOTUS ruling.
As much as I’m all for defending religious freedom, this is crazy. You are appointed by the state! Even if Texas had a legitimate reason for not wanting to issue licenses your religion can’t be one of them. It violates church and state in a serious way. The state is the one institution that should be protecting its citizens regardless if how one group feels about the other! Also I love Texas a lot but YOU LOST!!! Take it gracefully rather than go down being a sore loser. you want your state rights appeal in court. Don’t take it out on citizens following the laws laid out for them.