County clerks, judges with religious qualms can refuse to issue gay marriage licenses, Texas AG says
Texas Attorney General Ken Paxton.
Texas Attorney General Ken Paxton says in a legal opinion that government employees may refuse to issue same-sex marriage licenses if doing so violates their sincerely held religious beliefs.
Paxton’s opinion (PDF) says employees such as county clerks and their employees, justices of the peace and judges retain religious freedoms. The “newly minted” constitutional right to gay marriage “can and should peaceably coexist with longstanding constitutional and statutory rights,” Paxton wrote, “including the rights to free exercise of religion and freedom of speech.” The Washington Post, the Texas Tribune and the Austin American Statesman have stories.
In a statement, Paxton, a Republican, called the Supreme Court’s gay-marriage decision on Friday “lawless” and “fabricated.” The decision, Obergefell v. Hodges, said gay couples’ fundamental right to marry is protected by the due process and equal protection clauses of the 14th Amendment.
Texas law says county clerks or their employees “shall” issue marriage licenses, but a court would have to balance this duty against constitutional and statutory religious freedom rights for the clerks, as well as the constitutional rights of gay couples, Paxton says.
The law allows judges and justices of the peace to conduct marriage ceremonies, but it does not require them to do so, Paxton said.
“Importantly,” Paxton adds, “the strength of any particular religious accommodation claim depends on the particular facts of each case.” He cautioned in his statement that government officials could face litigation for refusing to issue gay marriage licenses but numerous lawyers stand ready to help on a pro bono basis.
Shannon Minter, legal director for the National Center for Lesbian Rights, counters that Paxton’s opinion is “wrong on the law.”
“Public officials have no constitutional or statutory right to discriminate in providing public services,” Minter told the Washington Post.
See also:
ABAJournal.com: “Michigan district court stops performing marriages in the wake of gay-marriage decision”
Updated July 2 to note party affiliation.
