HOUSTON – The Texas attorney general told local county clerks and other officials that if they refuse to issue marriage licenses to same-sex couples or perform weddings because they conflict with their religious beliefs the state will help them fight their case if they face lawsuits.
Republican Texas Attorney General Ken Paxton issued a statement and a nonbinding legal opinion on Sunday saying religious freedoms guaranteed by the First Amendment “may allow accommodation of their religious objections to issuing same-sex marriage licenses.”
Clerks who refuse to license same-sex couples “may well face litigation and/or a fine,” Paxton wrote. “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.”
Paxton’s opinion was echoed by Republican Gov. Greg Abbott, who issued a directive Friday to state agency heads to protect the religious liberties of all Texans.
“In the wake of the Supreme Court’s decision, the law’s promise of religious liberty will be tested by some who seek to silence and marginalize those whose conscience will not allow them to participate in or endorse marriages that are incompatible with their religious beliefs,” Abbott noted. “As government officials, we have a constitutional duty to preserve, protect and defend the religious liberty of every Texan.”
Officials in Texas’s 254 counties who issue marriage licenses and officiate at marriages are relatively autonomous, so the state response was a nonbinding directive. It was unclear Monday what county officials would do. Some in the urban Austin, Houston, Dallas and San Antonio areas married same-sex couples after the opinion was issued Friday while others balked.
Paxton’s opinion came in response to a request last week from Lt. Gov. Dan Patrick, a tea party Republican, who had asked whether county clerks, judges and justices of the peace who wanted to refuse same-sex couples could shield themselves from lawsuits by invoking a “pastor protection act” recently passed by the state’s Republican-dominated legislature.
Paxton wrote that such officials may “claim that the government cannot force them to conduct same-sex wedding ceremonies over their religious objections, when other authorized individuals have no objection, because it is not the least restrictive means of the government ensuring the ceremonies occur.”
He called the Supreme Court justices an “activist court” that “ignored the text and spirit of the Constitution to manufacture a right that simply does not exist” and encouraged local officials not to “weaken our resolve to protect religious liberty and return to democratic self-government in the face of judicial activists attempting to tell us how to live.”
Paxton said “hundreds” of Texas officials were seeking guidance on how to reconcile their religious beliefs with their oath to uphold the law.
“In recognizing a new constitutional right in 2015, the Supreme Court did not diminish, overrule, or call into question the rights of religious liberty that formed the first freedom in the Bill of Rights in 1791. This newly minted federal constitutional right to same-sex marriage can and should peaceably coexist with longstanding constitutional and statutory rights, including the rights to free exercise of religion and freedom of speech,” he wrote.
“Texas must speak with one voice against this lawlessness, and act on multiple levels to further protect religious liberties for all Texans, but most immediately do anything we can to help our county clerks and public officials who now are forced with defending their religious beliefs against the court’s ruling,” Paxton wrote.
On Monday, the conservative Liberty Institute based in Plano, Texas, applauded Paxton and offered to advise local officials “who may have questions about their conscience rights in light of the Supreme Court’s recent marriage decision. Liberty Institute has already had inquiries from individual government officials and is advising them on their rights and next actions.”
Liberty Institute President and Chief Executive Kelly Shackelford noted that, “Even Justice Kennedy’s majority opinion recognizes the First Amendment provides proper protection for religious organizations and persons who adhere to traditional beliefs concerning marriage.
“We are hearing stories of employees being threatened and that is wrong. When there is a question of conscience, Liberty Institute stands ready, willing and able to come alongside government employees and defend their religious liberty.”
Dan Quinn, spokesman for Texas Freedom Network, a liberal, Austin-based watchdog, called Paxton’s opinion “shocking, even by Texas standards.”
“What’s next? Will public employees have the right to refuse to do their jobs when they don’t share the same faith as couples who come before them? Will Christian judges be able to refuse to marry Hindus or Buddhists? Will a justice of the peace who is Muslim be able to deny services to Jews? Will Catholic clerks be able to refuse to issue a license to couples that include someone who has previously divorced? What about officials who belong to sects that preach white supremacy? Will they be able to refuse to issue marriage licenses to or marry interracial couples?” Quinn wrote.
Neel Lane, a San Antonio attorney for the same-sex couples who challenged Texas’ gay marriage ban, said Paxton’s message was a carefully worded call to arms for the religious right.
“The people the citizens look to to enforce their rights are thwarting them on completely frivolous grounds,” Lane said, “What they’re really doing is encouraging right-wing county officials to breach their duties. Whether county officials take up that invitation will be interesting to see. If they do, they’re going to end up paying a lot of attorneys fees because they have no legal grounds.”
Lane noted that after the Supreme Court ruling in Brown v. Board of Education, school officials were not allowed to resist integration based on their religious beliefs. Employees whose religious beliefs conflict with issuing other licenses – a conservative Muslim, for instance, who doesn’t believe women should drive – are not allowed to refuse to issue them, he said.
“Issuing a marriage license is no different than issuing a hunting license, a fishing license or a driver’s license. It’s a basic function of governance, and you don’t have a right to withhold it based on the individual employee’s religious beliefs,” Lane said.
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