To their credit, most county clerks in the state ignored Paxton's call for defiance. As of Tuesday, a Texas for Marriage survey revealed that 149 out of a possible 254 clerks were issuing licenses to same-sex couples. Another 46 county clerks told the advocacy group they would be as soon as software and physical forms could be updated. Dallas County Clerk John Warren, enthusiastically gave out the county's first license to George Harris, 82, and Jack Evans, 85, who'd waited more than 54 years to get married in their home state.
So that was good.
The drubbing given to Paxton's legal reasoning — basically that officials' religious liberty overrides the oath they swore when they took office — has also been good.
First came a memo from Katherine Franke, the director of the Public Rights/Private Conscience Project at Columbia University's law school. Franke gives Paxton's position a good faith reading, and then dismantles it completely.
"The case that is made for the 'marriage license exemption proposals' is not justified in either well-established constitutional law or in statutes that prohibit discrimination on the basis of religion. Rather, these proposals will violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, and the Establishment Clause of the First Amendment," she concludes, after citing a litany of precedents that contradict Paxton's assertions, as well as similar claims made by Louisiana governor and presidential candidate Bobby Jindal, among others.
Any county clerk, even if those with religious objections, must issue a marriage license to any eligible couple who comes in, Franke says, regardless of whether there is another person in the office who is willing to issue the license.
"Like [the Defense of Marriage Act] and the laws banning same-sex couples from marrying, the proposed exemptions would impose a disability on a class of persons whose relationships were otherwise entitled to recognition by the state, and those persons would be stigmatized thereby. It is all the more injurious that a state official, in the name of the public, would be the instrument of the stigma," Franke says in her memo.
Allowing clerks to refuse to issue licenses on religious grounds turns the First Amendment's protection of religious freedom on its head, Franke says.
"The usual case is really [people who practice a minority religion] whose religious practices run contrary to the way the majority run their businesses or the way we run our public policies," she says.
Religious liberty as protected by the Constitution is about preventing discrimination, not allowing the imposition of a public official's faith on others, Franke says.
Harris County Attorney Vince Ryan took Paxton to task along similar lines, referring to a 1983 opinion by then-Texas Attorney General Jim Mattox requiring county officials to perform interracial marriages if they performed marriages at all. County judges and justices of the peace are allowed, but not required, to perform marriages. Ryan did allow that a county clerk could allow a deputy not to issue licenses to same-sex couples, as long as the clerk's accommodation of his or her deputy would not create "an undue hardship" for the office.
Wednesday evening, Paxton dug in, issuing a statement in response to the U.S. Fifth Circuit Court of Appeals formally lifting a stay preventing same-sex marriages that it issued after U.S. District Court Judge Orlando Garcia ruled Texas' same-sex marriage ban unconstitutional in February 2014:
“The Fifth Circuit’s ruling today is consistent with the opinion my office issued on June 28, in response to Lt. Gov. Dan Patrick’s request for guidance. Writing for the Fifth Circuit, Judge Jerry Smith specifically states that the U.S. Supreme Court’s ruling in Obergefell v. Hodges ‘importantly invoked the First Amendment… Obergefell, in both its Fourteenth and First Amendment iterations, is the law of the land and, consequently, the law of this circuit and should not be taken lightly by actors within the jurisdiction of this court.’
At least one Texas county clerk intends to test Paxton's hypothesis. Hood County Clerk Katie Lang — yep, we're calling her k.d. lang, too, can't help it — initially said her office would not be issuing same-sex marriage licenses period. By Tuesday night, she'd backed off in a statement posted to the Hood County website, saying her office would issue the licenses, she just wouldn't do it herself.
"The importance of protecting religious liberty while enforcing the law under Obergefell lies at the core of the opinion issued by my office and is a key consideration for County Clerks as they justifiably issue licenses in accordance with the Court’s ruling. The new right created by the U.S. Supreme Court to same-sex marriage can and must peaceably coexist with longstanding constitutional and statutory rights, including freedoms of religion and speech, and today’s ruling by the Fifth Circuit reflects that truth.”
"The religious doctrines to which I adhere compel me to personally refrain from issuing same-sex marriage licenses. Nonetheless, in addition to the county clerk offices in the several surrounding counties, as soon as the appropriate forms have been printed and supplied to my office, the County Clerk’s Office of Hood County will have staff available and ready to issue same-sex marriage licenses.Lang will likely get sued as soon as willing plaintiffs can be found, according to Franke.
Because some have misreported and misconstrued my prior statements, I want to make clear that the County Clerk’s Office of Hood County will comply with the recent decision of the Supreme Court of the United States.
I am grateful that the First Amendment continues to protect the sincerely held religious beliefs of public servants like me. That has not changed since last Friday. As Justice Kennedy stated, “it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage
should not be condoned."
"If a clerk says they won't issue licenses to same-sex couples, they're going to get sued," she says. "The Supreme Court said that every state, every county, every town has to issue marriage licenses to same-sex couples. There was no ambiguity in that decision."