The state attorney general issued a nonbinding opinion over the weekend suggesting that justices of the peace, judges, county clerks and their employees have a constitutional right to refuse to facilitate gay marriages.

Share story

HOUSTON — The U.S. Supreme Court decision establishing that same-sex couples have a constitutional right to marry has left some state officials grappling with another legal question: are government employees with conflicting religious beliefs obligated to issue licenses and perform weddings for gay partners?

The issue has come quickly to a boil in Texas, where the state attorney general issued a nonbinding opinion over the weekend suggesting that justices of the peace, judges, county clerks and their employees have a constitutional right of their own to refuse to facilitate such marriages, especially when there may be other county employees and judges with no similar reservations willing to do the job.

“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,” Attorney General Ken Paxton said in a separate statement.

While the Supreme Court found that the right of same-sex couples to marry is enshrined under the due process and equal protection clauses of the 14th Amendment, the attorney general’s opinion asserts that county officials and their employees “possess constitutional and statutory rights protecting their freedom of religion” under the First Amendment.

The result was a state of legal confusion across Texas, as some county clerks began issuing licenses to gay couples, and others contacted lawyers for advice. Legal experts said the question would likely make its way back to the courts.

Likewise in Louisiana, Gov. Bobby Jindal issued a legal memo ordering that “reasonable accommodations” should be made for local clerks and justices of the peace who have a religious objection to opt out of granting marriage licenses to gay couples.

In Mississippi, clerks began issuing same-sex marriage licenses Monday after receiving clearance from Attorney General Jim Hood. Hood had initially advised county clerks that the decision would not take effect until a stay was lifted on a U.S. district judge’s order overturning the state’s same-sex marriage ban.

On Monday, Hood sent an email to clerks affirming that the Supreme Court’s ruling “is the law of the land,” and if a clerk refuses to issue a marriage license to a same-sex couple, they could be sued.

Elsewhere in the country, gay and lesbian couples were largely obtaining marriage licenses without restriction, despite some pockets of resistance and uncertainty in the South.

Backers of same-sex marriage have insisted that issuing marriage licenses is a fundamental governmental responsibility that under the Supreme Court’s decision last week now includes the obligation to issue them without regard to sexual orientation.

“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,” said Neel Lane, a San Antonio attorney for same-sex couples who challenged Texas’ gay-marriage ban.

Texas overwhelmingly passed a state constitutional amendment in 2005 banning gay marriage, and some opponents were prepared to continue to fight even after the Supreme Court ruling.

Paxton noted that county clerks with religious objections can often ask another employee in their office to issue licenses. But he warned that in cases where there is no employee willing to issue a license, those who refuse to license same-sex couples “may well face litigation and/or a fine.”

“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 said.

His opinion was echoed by Republican Gov. Greg Abbott, who issued a directive Friday to state agencies to protect the religious liberties of all Texans.

Officials issuing marriage licenses and officiating at weddings in Texas’ 254 counties are relatively autonomous. Some in the Austin, Dallas, Houston and San Antonio areas married same-sex couples, while others balked.

Outside Dallas, Denton County Clerk Juli Luke initially refused to issue same-sex marriage licenses, but reversed herself Monday after updating forms and conferring with “outside counsel.”

“Personally, same-sex marriage is in contradiction to my faith and belief that marriage is between one man and one woman,” Luke said in a statement. “However, first and foremost, I took an oath on my family Bible to uphold the law and as an elected public official my personal belief cannot prevent me from issuing the licenses as required. Moreover, my faith in Christ ensures I have compassion and respect for those who feel differently.”

The Liberty Institute, a conservative legal group based near Dallas, was contacted by officials in Denton and other counties about laws protecting their religious freedoms.

“Most of the calls we’re getting, employees didn’t know about these laws and they’re really confused,” said Liberty Institute president and CEO Kelly Shackelford. “One lady was crying and saying, ‘I was told by the county attorney that I could go to jail or be sued if I don’t do this.’ ”

Shackelford said his office had anticipated that the ruling would “open up a whole battlefield on religious freedom” and now he expects it will start a “wave of lawsuits.”

He said those who object are not looking to block the law, they just want accommodations that allow them not to have to issue licenses or marry same-sex couples.

He cited previous legal cases in which a Muslim woman successfully sued Abercrombie & Fitch for denying her a job because of her head scarf; where pharmacists won the right to refuse to sell contraception that went against their religious beliefs and where employees fired for refusing to work on Saturdays won the right to be offered different shifts.

Shackelford said officials could accommodate religious objections by assigning a different employee to issue marriage licenses. “There’s a right for a person to obtain a license but there isn’t a right to make that particular person do it,” he said.

Others disagreed.

“There is no religious right to object to it, period,” said Jesse Choper, Earl Warren Professor of Public Law at the University of California, Berkeley. “As long as a law has a clear application — that is, it does not apply just to religious groups — the free exercise clause says it’s not violated. It has to single out religion.”

Rebecca Robertson, legal and policy director for the American Civil Liberties Union of Texas, said that while certain religious accommodations may be made for employees, such as the Sikh sheriff’s employee allowed to wear a turban and beard to work in the Houston area, “the difficulty with Attorney General Paxton’s opinion is that it’s implying that there’s some blanket religious exemption. That’s not what the First Amendment means.”

Lane, the San Antonio attorney, said state officials were essentially “encouraging right-wing county officials to breach their duties.”

“If they do, they’re going to end up paying a lot of attorneys’ fees because they have no legal grounds,” he said.

He noted that government staff whose religious beliefs conflict with issuing other licenses — a conservative Muslim, for instance, who doesn’t believe women should drive — are not accommodated, because that’s considered discrimination (Texas law does not generally bar discrimination against same-sex couples, although some Texas cities do).

Same-sex marriage supporters held a briefing Monday on the steps of the state Capitol in Austin to call for enforcement of the high court’s ruling and an expansion of legal protection for gay couples against discrimination.

“It’s time to end the political games and begin issuing marriage licenses equally in every county of the state of Texas,” said Chad Griffin, president of the Human Rights Campaign.

D. Karen Wilkerson, 64, a Democratic activist in Tyler in northeast Texas, said that after she and her fiancee were turned away by the Smith County clerk Friday, she filed a request for a writ in federal court that would have compelled the clerk to comply with the law, and returned at 8 a.m. Monday expecting more resistance.

By 9:30 a.m., Wilkerson had posted a photo on Facebook of her marriage license and a triumphant note: “We got it!”

She and her fiancée, Jolie Smith, 52, planned to wed Monday night. And they were not alone.

“My phone and Facebook have just blown up,” with news of other same-sex couples getting marriage licenses from offices where they were previously turned away, she said, “A lot of the county clerks may have seen the handwriting on the wall.”