By Molly Hennessy-Fiske, Los Angeles Times (TNS)
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.
Lane said he had already been contacted by some couples who were turned away last week and planned to attempt to obtain licenses again Monday, including a pair in Tyler, the Smith County seat, about 95 miles east of Dallas.
D. Karen Wilkerson, 64, said she and fiancee Jolie Smith, 52, contacted Lane after they were turned away by the Smith County clerk Friday.
“We’re waiting — our vows are ready, our clothes are ready, our friends are ready,” said Wilkerson, who is retired after working in advertising and as a marriage counselor.
The clerk turned them away because she did not have updated forms, refused to alter them as other counties did or accept an update, Wilkerson said.
Their attorney filed a writ in federal court Friday that would force Smith County to comply. They planned to return to the clerk’s office Monday to try again. If the clerk still refused, they plan to ask a federal judge for an emergency hearing on their writ.
“They’re just absolutely adamant that they’re not going to do this,” said Wilkerson, a Democratic organizer who expected local conservative tea party Republicans to refuse.
Wilkerson said she was appalled but not surprised to see Paxton encouraging such behavior.
“Has he not read the Sedition Act?” she said.
The couple could drive to Dallas to get married, but they said that’s not an option.
“Both of us raised kids here, we want to be married in Smith County because that’s where we live,” Wilkerson said.
Smith, a local business owner, added, “I have deep roots in east Texas. I love Texas and I love my home and a lot of people I love are in Smith County and we want them to do what’s right. My bet is half the county clerks in Texas will see the writing on the wall and say it’s my obligation.”
When Wilkerson and Smith showed up at the Smith County clerk’s office Monday, they found a sign saying staff were in a meeting “while we test our system to accommodate the new forms.”
Wilkerson took a photo of the sign, posted it on Facebook, and kept waiting.
At about 9:30 a.m. Central time, Wilkerson posted a photo of her new marriage license and a triumphant note: “we got it!”
(c)2015 Los Angeles Times. Distributed by Tribune Content Agency, LLC.
Photo: George Olcott via Flickr