Following Obergefell, some Texas counties stepped up while others dithered
JAMES RUSSELL | Staff Writer
On Friday, June 26, all but one of Texas’ largest counties were ready to issue marriage licenses to same sex couples following the Supreme Court’s historic ruling in Obergefell v Hodges, legalizing marriage equality nationwide.
Clerks in Bexar, Dallas, Tarrant and Travis counties complied with the ruling within hours, with Dallas’ John Warren and Travis’ Dana DeBeauvoir showing the most enthusiasm. Bexar’s Gerard Rickhoff had previously said he disagreed with the decision but would issue marriage licenses immediately. Though she initially gritted her teeth, Tarrant County’s Mary Louise Garcia immediately complied, announcing at 10 a.m. that her office was ready to begin issuing licenses.
But those four were among only 21 of Texas’ 254 counties issuing licenses on Decision Day.
Across the state, including North Texas, clerks gave a myriad of reasons for withholding licenses. Some stemmed from uncertainty about the accuracy of the forms; some were waiting for clearance from attorneys.
Take Parker County Clerk Jeane Brunson, who according to the Weatherford Democrat, turned away five couples by lunchtime. She said state law prevents her from issuing licenses to same-sex couples — no matter what the Supreme Court of the United States says.
“There are several factors,” Brunson told the paper. “One of the factors is that the State of Texas specifically states by statute that a marriage license can’t be issued for the marriage of persons of the same sex. That’s in the Family Code.”
Yet the statute she specifically evoked had been waived by other clerks.
“To alter the old form would be in violation of the law,” Brunson continued. “Therefore, my call to the Department of State Health Services said that they were consulting with the Attorney General’s Office and they would notify all county clerks as soon they had been given information as to how to proceed.”
On the day of the ruling, Harris County Clerk Stan Stanart resisted issuing licenses. He had done himself no favors when he previously stated legalizing same-sex marriage would destroy the institution of marriage.
But that’s not the reason his office gave when couples sought a license; he said they needed the county attorney’s opinion, needed to wait for accurate forms from the state. He ultimately conceded late in the afternoon.
As Harris went, so did other Texas counties —and lawyers — and other counties slowly but surely conceded in the face of lawsuits and public uproar.
Attorney General Ken Paxton didn’t make things any better for clerks on Sunday, June 28. He issued a nonbinding opinion allowing clerks to cite their own deeply-held religious convictions as justification for declining to issue marriage licenses to same-sex couples.
Acknowledging that any clerks who did so would likely face lawsuits, Paxton promised his office would offer pro bono legal counsel to anyone who was sued.
“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,” Paxton, who is facing the possibility of being indicted on felony charges by a Collin County grand jury, wrote in his opinion.
That opinion concerned state Sen. Rodney Ellis, D-Houston. On Monday, June 29, Ellis wrote U.S. Attorney General Loretta Lynch
requesting federal oversight of the process. If necessary, Ellis urged, the Justice Department should intervene.
Victoria County Criminal District Attorney Stephen Tyler also disagreed with the Texas AG, issuing a biting response to Paxton’s decree.
“Attorney General Paxton essentially states: 1) He disagrees with the Supreme Court ruling, 2) He is not the lifeguard at this pool, and 3)
The water is deep and dark, so all swimmers WILL swim at their own risk,” Tyler wrote in a widely circulated memo.
But no one caused more uproar or represented the argument for religious liberty any worse than Hood County Clerk Katie Lang.
“The U.S. Supreme Court has just voted to allow gay Marriages but we as County Clerks are to follow the Law as stated in Texas,” Lang wrote to her employees, according to e-mails obtained the Fort Worth Star-Telegram through an open records request.
A defiant Lang promptly posted notice on the Hood County Clerk website declaring that she would not be issuing licenses to same-sex couples based on her religious objections, citing Paxton’s opinion.
“In the Attorney General’s opinion, Ken Paxton, issued in response to Lt. Governor Dan Patrick’s request for guidance, we find that although it fabricated a new constitutional right in 2015, the Supreme Court did not diminish, overrule or call into question the First Amendment rights to free exercise of religion that formed the first freedom in the Bill of Rights in 1791,” Lang’s statement on the website declared. “This newly invented federal constitutional right to same-sex marriage should peaceably coexist alongside longstanding constitutional and statutory rights, including the rights to free exercise of religion and speech.”
Dallas Voice on Tuesday morning contacted Lang’s office to verify the meaning of Lang’s post and a spokeswoman confirmed that not only would Lang not issue the licenses, but that she had ordered that no one in the office would. Lang’s emails, published by Bud Kennedy in the Star-Telegram, confirmed that order.
But by Tuesday evening, after becoming the face of Rural Resistance 2015 and learning that she was facing a lawsuit from an angry couple, Lang gave in.
“The religious doctrines to which I adhere compel me to personally refrain from issuing same-sex marriage licenses,” Lang wrote in a newly posted statement. “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.”
Glen Maxey, the first openly-LGBT person elected to the Texas House of Representatives who now works as a lobbyist in Austin, reported that as of the end of the day Wednesday, July 1, grandstanding or not, most counties were complying.
He said that 235 Texas counties — or 92 percent — were either issuing marriage licenses already or were planning to issue licenses soon. At least 175 Texas Counties — 69 percent — had said they were issuing marriage licenses by Wednesday, and 60 counties — 24 percent — say they were not currently issuing marriage licenses but planned to soon.
And, Maxey said, “10 counties unknown because nobody is answering the telephone.”
According to a press release from Texans for Marriage, by 1 p.m. Thursday, July 2, 95 percent of Texas’ 254 counties were issuing or ready to issue marriage licenses to same-sex couples.
This article appeared in the Dallas Voice print edition July 3, 2015.