Texas AG tells clerks they can flout Supreme Court ruling on gay marriage

A traditional husband and wife wedding painting hangs on the wall of the County Clerks Office while Carly Kinslow, left, and partner Jenifer Wegley, of Katy, exit after filing for a marriage license at Harris County Civil Courthouse Friday, June 26, 2015, in Houston. The Supreme Court of the United States on Friday ruled that same-sex couples can marry nationwide. less A traditional husband and wife wedding painting hangs on the wall of the County Clerks Office while Carly Kinslow, left, and partner Jenifer Wegley, of Katy, exit after filing for a marriage license at Harris ... more Photo: Gary Coronado, Houston Chronicle Photo: Gary Coronado, Houston Chronicle Image 1 of / 21 Caption Close Texas AG tells clerks they can flout Supreme Court ruling on gay marriage 1 / 21 Back to Gallery

AUSTIN - Texas Attorney General Ken Paxton on Sunday told county clerks in the Lone Star State their religious beliefs could enable them to flout the U.S. Supreme Court's historic ruling legalizing same-sex marriage, while adding some may face litigation for refusing to issue licenses to gay couples.

"It is important to note that any clerk who wishes to defend their religious objections and who chooses not to issue licenses may well face litigation and/or a fine," Paxton said in a statement accompanying an opinion released Sunday.

"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."

READ PAXTON'S OPINION HERE

The opinion - which Lt. Gov. Dan Patrick requested last week - comes just two days after the high court in an historic ruling struck down gay marriage bans in Texas and a dozen other states. Some county clerks here began immediately issuing licenses to same-sex couples, while many others said they would wait until the state updated its licensing form or until Paxton released guidance on how to proceed.

Paxton individually addressed two sets of people in his Sunday opinion: county clerks and their deputies, who issue licenses, and those who can perform marriages.

He said his office believed state religious freedom laws would allow clerks to refuse to issue marriage licenses to same-sex couples if they have sincerely held beliefs that prohibit them from doing so, and if there was someone else present - like a deputy - who would be willing to service the couple.

Judges and justices of the peace, however, should be able to refuse to marry these couples without finding an alternative, said Paxton, because there are others endowed with the ability to perform marriages, like members of the clergy.

"So long as other authorized individuals are willing to conduct same-sex wedding ceremonies, these statutory provisions demonstrate the practical reality that a refusal by a religiously objecting justice of the peace or judge cannot prevent a same-sex couple from participating in a wedding ceremony contemplated by state law," wrote Paxton.

Importantly, he said the specifics of each individual refusal would be important, and that clerks in particular should be ready to face litigation or a fine for refusing to issue marriage licenses to same-sex couples.

The argument that individuals can refuse to service same-sex couples is based on the so-called "undue burden" concept, that says these services can be denied if they can be received elsewhere without subjecting the couple to excessive hardship. The "undue burden" argument is the same one cited in Texas officials' recent push to further restrict access to abortion.

Paxton's Sunday opinion was likely the first volley in Republican officials' promises to push back against the ruling, by using state and federal religious freedom protections to continue chipping away at the right of same-sex couples and lesbian, gay, bisexual and transgender individuals.

Travis County Clerk Dana DeBeauvoir was one of the several that told her office to immediately begin issuing licenses to same-sex couples on Friday. Reached for comment Sunday, she said after speaking with the county attorney, she placed little stock in Paxton's opinion.

"I don't believe there is a lot of merit in their opinion," said DeBeauvoir. "However, until this is litigated we will take care of our employees and no one will be made to feel uncomfortable. After all, isn't that whats this is all about?"

"We are public servants in a secular role to uphold the law of the land," she added. "We have separation of church and state. We need to remember that."

Calls to multiple other clerks were not immediately returned Sunday.

Neel Lane, who was the attorney for the two same-sex couples that sued Texas for the right to marry, called Paxton's opinion the "latest ridiculousness" from state officials. He said issuing a marriage license is not a religious act, and state employees who take an oath to serve all Texans equally should not be able to deny the Constitutional rights of any one group.

"This is a red herring that is intended to whip up the base but it is legally deficient. it is legally in error," said Lane. "If state officials are going to encourage state employees not to comply with their duties...there will be a spate of lawsuits."

He added, however, that while clerks are compelled to issue marriage licenses to anyone who is applicable, judges and justices of the peace have never been required to perform marriage. They have the right to refuse for any reason, he said.

On Friday, the high court in a 5-4 ruling struck down Texas' now decade-old constitutional ban on same-sex marriage. Calling it a fundamental right "essential to our most profound hopes," Justice Anthony Kennedy wrote for the majority, "No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family."

The hope of same-sex couples, he added, "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."

In his statement, Paxton called the decision "flawed" and said it "ignored the text and spirit of the Constitution to manufacture a right that simply does not exist."

"Clerks and deputy clerks alike must take an oath of office (that) requires the official to swear to 'preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God,'" Paxton's opinion said. "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."