Texas Officials Are Trying to Fight Same-Sex Marriage

June 30th 2015

Alex Mierjeski

Texas' Attorney General pledged on Monday to defend marriage clerks in his state who refuse to issue licenses to same-sex couples based on religious grounds, citing what he called a flawed and lawless decision by the U.S. Supreme Court Friday that legalized gay unions in all 50 states.

In a statement released on Sunday, Attorney General Ken Paxton called up the First Amendment right of county clerks to uphold permutations of religious liberties extending to the issuance of marriage licenses. In their landmark decision, the high court, he said, "again ignored the text and spirit of the Constitution to manufacture a right that simply does not exist. In so doing, the Court weakened itself and weakened the rule of law, but did nothing 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," he wrote, noting that the reach of the court's opinion stops short at the "First Amendment and our laws protecting religious liberty."

"Even the flawed majority opinion in Obergefell v. Hodges acknowledged there are religious liberty protections of which individuals may be able to avail themselves. Our religious liberties find protection in state and federal constitutions and statutes. While they are indisputably our first freedom, we should not let them be our last," he wrote.

In an opinion submitted to Texas Lieutenant Governor Dan Patrick on Sunday, Paxton invoked the Religious Freedom Restoration Act in defending county clerks' right to refuse a license. The legislation requires that if the pursuance of a "compelling government interest" is "substantially burdening" to "a person's free exercise of religion," it must be done using the "least restrictive means."

But as ThinkProgress reports, Paxton potentially overlooks Texas' own version of the federal RFRA, which protects against someone with religious objections to a certain law using RFRA to override civil rights laws and statutes. ThinkProgress also notes that a portion of Texas's Family Code bars those authorized to perform marriages from "discriminating on the basis of race, religion, or national origin against an applicant who is otherwise competent to be married."

The opinion was illustrative of other fragmented efforts across the country in places such as conservative Mississippi, Louisiana, Kentucky, and Alabama, to push back against Friday's ruling. Like in Texas, where most counties were still issuing licenses, the push back, which often centers on religious freedoms, has drawn criticism from gay rights groups who say it's tantamount to discrimination, or litigiously misguided.

Shannon Minter, legal director for the National Center for Lesbian Rights, told the Washington Post that "public officials have no constitutional or statutory right to discriminate in providing public services," and that the Texas "opinion is wrong on the law, and it does a disservice to officials who need clear, reliable guidance about their duty to follow the law and to provide marriage licenses to all qualified couples."

But in Texas, at least, Attorney General Paxton seemed adamant in his conviction, and prepared to fight for it.

"It is important to note that any clerk who wishes to defend their religious objections and who chooses not to issue licenses may well face litigation and/or a fine. 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," he wrote in the opinion.

Paxton appears to have the support of Texas Gov. Greg Abbott, according to a memo issued by the governor on Friday.

"The government must never pressure a person to abandon or violate his or her sincerely held religious beliefs regarding a topic such as marriage," he wrote. "As government officials, we have a constitutional duty to preserve, protect and defend the religious liberty of every Texan."

Texans are divided on the issue of same-sex marriage, with 48 percent in favor of allowing legal marriages, and 43 percent opposing them, according to the American Values Atlas.