After a historic Supreme Court ruling, making same sex marriage legal in all fifty states, couples across the country flocked to courthouses to be legally married.
Despite the ruling, an East Texas County Court will not be issuing marriage licenses to gay and lesbian couples.
Smith County Clerk Karen Phillips said they first need new paperwork that is not gender specific. The current application is a state form that cannot be altered in any way, said Phillips.
The current state application has fields for male and female, an issue Karen Wilkerson and her fiancé Jolie Smith say is merely administrative.
In the Smith County vital statistics office, the couple completed the marriage application and attempted to turn it in to the clerk.
“[Male] is not something I can white out because that’s a legal form,” said Phillips to the couple. “This is a state form and I can’t do anything without a state form.”
“Is the purpose of Smith County to obstruct the law of the land for administrative purpose?” Wilkerson asked.
She then offered that other counties in Dallas and Austin were issuing licenses in Texas.
PHILLIPS: “Well, they may be doing that but I don’t want to have to call up a bunch of people saying we have to redo this.”
WILKERSON: “I’m willing to redo it.”
PHILLIPS: “Well, I’m not.”
WILKERSON: “I want you to act in your capacity as county clerk and follow the law of the United States government””
Phillips went on to explain that an incorrect form could jeopardize the legality of the marriage. In addition, marriage licenses are entered into a software system that also does not recognize non-gender specific information.
The headline to the story says that a lawsuit was filed over this, but there’s no mention of it in the body of the story. The justification that County Clerk Phillips gives is, to put it politely, bullshit, as County Clerks in Harris, Dallas, Travis, Bexar, McLennan, and elsewhere have demonstrated. I’m Facebook friends with Karen Wilkerson, and from what I can tell we will know more about this situation today. I will be keeping an eye on it.
Then there’s Denton County.
The Denton County Clerk Juli Luke refused two same-sex couples an application for a license Friday, saying first that she needed to receive legal guidance from the district attorney’s office.
Later, she announced that the office would not be issuing licenses because they needed to update their computer software.
Another same-sex couple in The Colony said they started calling other county satellite offices looking for one that would issue a license. They, too, were refused.
Denton County Judge Mary Horn said that, at this point, if a same-sex couple came to her requesting to be wed, she would refuse them.
She said that the difference between the actions of elected officials in Dallas County and Denton County on Friday reflected “a difference in core philosophies.”
Every county level elected office in Denton County is held by a Republican.
District Attorney Paul Johnson said the decision whether to issue licenses belonged to the clerk’s office.
A sign on the clerk’s door said that the office would not be issuing same-sex licenses today because of “changes that must be made for our vendor.”
No explanation was provided.
Again, pure bullshit. Why the County Clerk would need to consult with the District Attorney in a strictly civil matter is a question I can’t answer, but the real question is why she needs to consult with anyone at all on this crystal clear matter of following the law of the land. As yet I have not seen word of a possible lawsuit, but I am confident one will be in the offing if Denton County doesn’t get its act together quickly. If you have any reports from your county about similar behavior, please drop me a note (kuff – at – offthekuff – dot – com) or leave a comment. Thanks.
And if these clerks or any others are waiting to be advised by AG Ken Paxton, they should know he’s giving them very bad advice.
Texas Attorney General Ken Paxton, a Republican social conservative, offered at least moral support Sunday for county clerks and their employees who feel their religious beliefs dictate that they decline to issue same-sex marriage licenses.
In a nonbinding legal opinion, Paxton said religious freedoms guaranteed by the First Amendment “may allow accommodation of their religious objections to issuing same-sex marriage licenses.”
The clerks who balk at licensing gay marriage “may well face litigation and/or a fine,” Paxton warned.
“Importantly, the strength of any particular religious accommodation claim depends on the particular facts of each case,” he concluded.
“But,” he added in a press release, “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 also said justices of the peace and judges similarly may rebuff requests that they officiate at same-sex weddings, especially if their colleagues in their areas are receptive to doing so.
Neel Lane, a San Antonio lawyer for the same-sex couples who challenged Texas’ gay marriage ban in federal court, said Friday that state and local officials who refuse to comply with the Supreme Court’s ruling set themselves up for costly lawsuits. Lane said private citizens could file federal civil rights lawsuits, which are called “Section 1983″ claims, against recalcitrant state and local officials. Other lawyers supportive of gay rights have said gay and lesbian couples who are refused marriage licenses could ask U.S. District Judge Orlando Garcia of San Antonio to hold the particular county clerk in contempt of court. Garcia has issued an injunction against enforcement of Texas laws defining marriage as between a man and a woman.
In his advisory opinion to Patrick, Paxton noted that county clerks could delegate their duty to issue marriage licenses to subordinates. He implied that might solve the conundrum for a clerk who feels issuing a same-sex marriage license would violate a sincerely held religious belief. But what if the employees feel similarly?
Paxton noted that under Religious Freedom Restoration Acts (RFRA) that both the Texas Legislature and Congress passed in the 1990s, “deputy clerks and other employees may have a claim that forcing the employee to issue same-sex marriage licenses over their religious objections is not the government’s least restrictive means of ensuring a marriage license is issued, particularly when available alternatives would not impose an undue burden on the individuals seeking a license.” Paxton wrote that if everyone in a clerk’s office has a religious objection, and if the office is still issuing licenses to opposite-sex couples, “it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution.” Completely refusing to issue marriage licenses to anyone also would be problematic, he wrote. The two RFRAs, the state and federal constitutions, state employment laws, state laws on clerks’ duties all may come into play, depending on the facts of a scenario, he said.
Essentially, Paxton invited clerks and their employees to defy the Supreme Court, but didn’t promise they’ll win.
There’s a map of what counties are doing at the post, so go check it out. Paxton issued his opinion in response to a request from Dan Patrick. This is probably the fastest opinion ever issued by an AG, and surely the least researched. The Trib quotes the ACLU of Texas reminding everyone that Paxton is basically full of it, but that is unlikely to be persuasive to anyone determined to fall on his or her sword. Again, I am not aware of any planned litigation at this time, but you can be sure it will happen if it needs to. Stay tuned, because this is far from over. The Current, which has a copy of Paxton’s opinion, has more.
UPDATE: Missed this earlier, but Williamson County is on the naughty list, too.