Texas AG Thinks County Officials Can Avoid Issuing Marriage Licenses to Same-Sex Couples
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Exercising religious freedom or discrimination?
Texas joined Mississippi and Louisiana in limited implementation of Friday’s marriage equality ruling—the state’s attorney general issuing an opinion Sunday defending religious-minded county clerks who decline to issue marriage licenses to same-sex couples.
While it’s too early to tell if Ken Paxton’s argument will catch on widely among Texas’ counties or spread to other states, he conceded officials attempting to opt-out of issuing licenses citing religious freedom could be sued and should try and find a replacement.
To those who find themselves in legal trouble standing up for their religious liberties, he recommended finding a pro-bono attorney.
From Paxton’s opinion:
Justices of the peace and judges also may claim that the government forcing them to conduct samesex wedding ceremonies over their religious objections, particularly when other authorized individuals have no objection to conducting such ceremonies, is not the least restrictive means of furthering any compelling governmental interest in ensuring that such ceremonies occur. Importantly, the strength of any particular religious accommodation claim depends on the particular facts of each case.
On Friday, the U.S. Supreme Court ruled 5-4 in Obergefell v Hodges that, in accordance with the 14th Amendment, states must license same-sex marriages and recognize those performed out-of-state.
A day earlier, Paxton asked county clerks to wait to issue marriage licenses, even after the federal ruling, until he gave directions. Maverick, Ector, Victoria, Potter, and Bastrop counties were among those that held off, The Texas Tribune reported.
“We intend to take the momentum from this historic victory for equality into cities and towns across the state, where in many places LGBT Texans can still be fired, evicted, or refused service simply because of who they are,” Texas ACLU Executive Director Terri Burke said in a statement just after the ruling. “We must ensure that every Texan, everywhere and always, is free from discrimination.”
Earlier this month, Texas Gov. Greg Abbott signed legislation shielding clergy members from having to perform same-sex weddings.
Paxton’s opinion may illegally delay same-sex marriages in counties where it’s enforced, but that’s all it can do at this point.
And gay rights activists are working quickly to rebuff any remaining legal resistance in Texas and any other states still defiant after having their same-sex marriage bans lifted.
“Public officials have no constitutional or statutory right to discriminate in providing public services,” National Center for Lesbian Rights Legal Director Shannon Minter told The Washington Post. “This opinion is wrong on the law, and it does a disservice to officials who need clear, reliable guidance about their duty to follow the law and to provide marriage licenses to all qualified couples.”
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