County Clerk Caves After Being Sued for Not Issuing Same-Sex Marriage License

Katie (not k.d.) Lang made sure she was going to get sued last week. Flouting a U.S. Supreme Court ruling legalizing same-sex marriage, but backed by a legally dubious opinion from Texas Attorney General Ken Paxton, the Hood County Clerk decided initially that her office just wasn't going to issue marriage licenses to same-sex couples. Once that declaration attracted an uncomfortable amount of attention, Lang backed off a bit, saying that while she wouldn't issue the licenses personally, someone in her office would. If that was actually the case, Lang might have avoided a lawsuit, at least temporarily.

It wasn't, though. Jim Cato and Joe Stapleton came into Lang's office to get a license last Thursday. After arriving a little before noon on Thursday, according to a lawsuit filed in U.S. District Court on Monday, the couple saw a sign stating they'd have to wait a couple of weeks to get their license. Lang and her underlings didn't yet have the appropriate forms, the sign said. (They'd been told the same on the phone earlier in the week). Cato, Stapleton and their lawyer Jan Soifer left the office to draft a demand letter. They'd get their license Thursday or they'd sue.

When Cato, Stapleton and Soifer came back Thursday afternoon, they were again refused a license.

"[An assistant deputy clerk], whose voice Jim recognized from their phone calls, again told them that the office would not issue them a marriage license, this time explaining it was because their office did not have the proper forms. Joe and Jim then produced a copy of the revised application for marriage license, promulgated by the state and available to county clerks, and asked if they could use it to apply. [She] told them she could not accept that form. Then Clerk Lang asked everyone to leave the office, stating that no media was allowed. Jim replied that Joe and Jim were not media, but instead taxpayers of Hood County, there to get a marriage license, but the Clerk said they needed to leave as well, which was humiliating. Clerk Lang also apparently called the Sheriff’s Department, because by the time Joe and Jim left her office, approximately half a dozen deputy sheriffs had arrived to stand guard outside and immediately inside the Clerk’s office," Cato and Stapleton's lawsuit says.

The injury described in the suit — the humiliation and unnecessary delay suffered by Cato and Stapleton — is the grounds for a lawsuit described last week by Katherine Franke, the director of the Public Rights/Private Conscience Project at Columbia University's law school. Even though Lang's office relented after the suit and issued the license using the publicly available corrected form, Cato and Stapleton are reportedly continuing with their suit, telling KTVT that they want to make sure everyone can get a license without a delay.

"Jim Cato and Joe Stapleton are delighted that they finally have been issued a marriage license and can get married in their home county," Soifer said in a statement Monday. "It’s a shame that they needed to hire lawyers and file a lawsuit to make that happen. The issuance of the license this morning immediately after the lawsuit was filed does not change the fact that Hood County Clerk Katie Lang has been willfully violating the U.S. Constitution and the rule of law since Friday, June 26, when the Supreme Court issued its Obergefell opinion. The license was issued this morning, a few hours after the lawsuit was filed, in handwriting on the existing license form, which proves that County Clerk Lang easily could have complied with the law without waiting 10 days. Under these circumstances, the lawsuit will not be dismissed until and unless we have an agreement from Clerk Lang that her office will issue marriage licenses to all couples, gay and straight, without delay, and an agreement to pay Jim and Joe’s attorneys’ fees for being forced to file the lawsuit."

Lang has not responded to a request for comment.