Tarrant County is preparing to be in the business of issuing same-sex marriage licenses.
If the 5th U.S. Circuit Court of Appeals rules that Texas’ same-sex marriage ban is unconstitutional — and there’s no stay of that ruling — local officials said Wednesday that they will comply.
“The 5th Circuit Court of Appeals holds the ball in their hands,” said Jeff Nicholson, chief deputy for Tarrant County Clerk Mary Louise Garcia. “If they lift the ban but don’t stay it or make a prohibition, we’ve been told by the district attorney’s office to issue licenses.”
County employees might first need a bit of time to update the forms that couples fill out when seeking licenses and to reconfigure the records management system to include space to state whether licenses were issued to two men or two women, rather than one man and one woman.
“It might take a day or two to ramp up … but after that, we would be ready to proceed,” Nicholson said.
The federal appeals court ruling on Texas’ decade-old ban could come any day. The U.S. Supreme Court is expected to weigh in on same-sex marriage by summer.
“We are pleased that Tarrant County is joining the national trend of complying with federal courts when orders are issued,” said David Mack Henderson, president of Fairness Fort Worth, an LGBT advocacy group. “That hasn’t happened yet. However, most of us believe a ruling is imminent from the 5th Circuit.
“Guessing when the court will rule and if there will be a stay has become a national sport.”
Last month, a clerk in Texas made national news by issuing a license to two women in Austin, one of whom has been diagnosed with ovarian cancer, in the state’s first same-sex marriage.
State Attorney General Ken Paxton asked the Texas Supreme Court to weigh in and stop future same-sex marriages.
The court issued an emergency stay, and Paxton declared void the one license that had been issued.
“The same-sex marriage license issued by the Travis County clerk is void, just as any license issued in violation of state law would be,” he said at the time. “I will continue to defend the will of the people of Texas, who have defined marriage as between one man and one woman, against any judicial activism or overreach.”
Alabama was the most recent hot spot in the ongoing national battle after the Supreme Court moved to allow same-sex marriages there.
Confusion ensued when some counties followed the direction of Alabama Chief Justice Roy Moore, who said marriage licenses shouldn’t be issued to same-sex couples. The mess has yet to be cleared up as state Supreme Court justices continue to resist orders from federal courts.
Last month, U.S. Sen. Ted Cruz of Texas and 11 other Republican senators reintroduced the State Marriage Defense Act, which would let states create their own definition of marriage and would prevent the federal government from enforcing any other definition.
In 2005, Texas voters approved a state constitutional amendment banning same-sex civil unions and marriages.
Last year, U.S. District Judge Orlando Garcia of San Antonio struck down the ban but halted the decision because of pending appeals. The 5th Circuit has heard arguments challenging the ban and could rule anytime.
Last year, Dallas County Clerk John Warren told The Texas Observer that he was ready to issue licenses for same-sex marriages if even a small window opened to make them legal in Texas.
“You take an oath to uphold the law and if the law changes, you’ve got to do it,” Warren told the Observer. “If the law says I can’t, then I won’t. If the law says I can, then I will.”
At that time, Nicholson said Tarrant County wasn’t taking a political stand on the issue and would wait for the DA’s office to determine whether and when the county could issue licenses.
On Wednesday, he sent Henderson a note that said “we intend to comply with rulings that may be issued.”
“If they say it’s unconstitutional and there’s nothing in our path, then we would issue the licenses,” Nicholson said.
Jonathan Saenz, president of the Austin-based Texas Values, which opposes same-sex marriage, said he’s among those who will be watching.
“It would be prudent for any Texas county clerk to exercise extreme caution on such an important issue of state law,” he said.
Anna M. Tinsley, 817-390-7610