Texas Attorney General Ken Paxton offered a lifeline to county clerks with his opinion issued Sunday about religious objections they might have to issuing licenses for same-sex marriages in the wake of Friday’s Supreme Court decision.
Hood County Clerk Katie Lang grabbed it.
“I’m standing up for my religious liberty,” she told the Texas Tribune. “I do believe that marriage is for one man and one woman because it did derive from the Bible.”
She has every right to believe that way. But if she’s going to be a county clerk, it is her duty to make sure her office issues licenses to same-sex couples who want them.
Paxton warned Lang and other clerks who might agree with her.
“County clerks and their employees possess constitutional and statutory rights protecting their freedom of religion,” he wrote.
But he also pointed out that state law says county clerks “shall … execute the clerk’s certificate on the [marriage license] application” if the application complies with the statutory requirements. The word shall imposes a crucial legal obligation.
A clerk can delegate responsibilities to deputies, Paxton wrote, “but every employee also has a religious objection to participating in same-sex-marriage licensure. In that scenario, were a clerk to issue traditional marriage licenses while refusing to issue same-sex marriage licenses, it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution.”
Lawsuits and/or fines could follow for the clerk, depending on how a court looks at individual circumstances of the case.
Paxton was plain with his warning, but his political stance showed through. His logic ran with the Supreme Court’s minority in declaring same-sex marriage “a new constitutional right.”
But by definition, the minority does not prevail. The majority opinion spoke powerfully on this point.
“If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied,” Justice Anthony Kennedy wrote for the majority.
“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”
Same-sex marriage is not a new right, simply one that has existed but has been denied in the past.