Texas Senate Approves Recusals For County Clerks Opposed to Same-Sex Marriage

Tuesday afternoon, the Texas Senate gave the go-ahead to a bill that will, if it becomes law, allow Texas county clerks to recuse themselves from issuing marriage licenses to same-sex couples. The bill, written by Senator Brian Birdwell, would allow county commissioners courts to appoint another person to issue licenses to same-sex couples should a clerk refuse to do so.

The bill, passed 21-10 along party lines, comes nearly two years after Texas Attorney General Ken Paxton briefly flirted with constitutional crisis following the Supreme Court's legalization of same-sex marriage. After the Supreme Court ruled on Obergefell v. Hodges in June 2015, Paxton issued an opinion that said county clerks who objected to the ruling could ignore it.

Two county clerks in Texas took Paxton up on his offer. One, Hood County clerk Katie Lang, backed down after a couple, Jim Cato and Joe Stapleton, threatened a lawsuit. In tiny Irion County, which sits 30 miles west of San Angelo, Molly Criner announced that she wouldn't be giving out same-sex marriage licenses either. Criner hasn't turned anyone down for a license because no one has asked her for one, she said at a 2016 Texas Senate hearing.

Dallas County had no such issues. Dallas County clerk John Warren began to prepare his office months before the ruling came. When it did, Warren personally issued Dallas County's first same-sex marriage license that day.

On the senate floor, Birdwell said he wants to protect county clerks like Long and Criner from criminal and civil liability. “[My bill] guarantees county clerks and every American the free exercise of religion even when they are working for the government,” he said.

Democratic senators pressed Birdwell on the bill's intent and its potential efficacy. County officials are already allowed to recuse themselves from any matter as long as they appoint a deputy of other employee to take over their duties, Democratic state Senator Sylvia Garcia said.

“I have very strong, deeply held religious beliefs on a number of issues, and I’ve been a judge and I have faced some difficult decisions to make,” Garcia said. “But I’ve also known that if I just couldn’t handle a case … then I would recuse myself.”

All he wants to do is formalize the process, Birdwell said, and put into law religious protections that would have previously been considered on a case-by-case basis. In order to protect couples like Cato and Stapleton, who would've been unable to marry in their home county if not for their lawsuit threat, Garcia offered an amendment to Birdwell's bill saying no couple can be burdened by a county clerk’s refusal to certify their marriage license.

Birdwell accepted Garcia's amendment before the vote. Despite the amendment, the Texas Freedom Network, a civil liberties advocacy group, blasted the bill.

"The Senate under Lt. Gov. Dan Patrick’s leadership has clearly become the center of intolerance and discrimination in Texas government. That chamber has already passed SB 6, which would require discrimination against transgender people in public restrooms," said Texas Freedom Network president Kathy Miller. "Now the Senate has moved on to bills that would allow government officials, private individuals and businesses a license to use religion to discriminate."