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.