Some county clerks across Texas relied on AG’s opinion to deny marriage licenses to same-sex couples. Most changed their minds when the lawsuits started
Shortly after the U.S. Supreme Court issued its landmark decision in Obergefell v Hodges, upholding marriage equality nationwide, Texas Attorney General Ken Paxton issued an opinion declaring that county employees may refuse to issue marriage licenses to same-sex couples if issuing those licenses would go against their “deeply held religious beliefs.”
Paxton also warned that, legally, all couples who apply for a marriage license must be accommodated as well. But some county clerks around the state seemed to have misunderstood that qualifier to his opinion.
Early this week, Hood County Clerk Katie Lang posted on the front page of her website, “I will be not be issuing same sex marriage license’s due to my religious convictions.” She said the Supreme Court’s marriage equality decision “fabricated [a] new constitutional right,” also claiming the decision doesn’t “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 has since relented, saying that while she would not personally issue marriage licenses to same-sex couples, the office of Hood County Clerk would.
In Cleburne County, Ark., County Clerk Dana Guffey resigned her position rather than issue marriage licenses to same-sex couples. She’s been in office 24 years, but because her beliefs conflicted with her being able to fully carry out her job, she’s leaving office.
Texas state Rep. Matt Krause said if there are two or three clerks in an office and all agree, one of them should handle the licenses for same-sex couples. That way everyone is accommodated and no one is violating their personal religious beliefs.
Although Paxton’s ruling is controversial, it may be an accurate reading of the Equal Employment Opportunity Commission’s guidance on religious workplace discrimination, according to Lambda Legal Senior Staff Attorney Ken Upton.
“Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on religion,” the EEOC guidance says. That means an employer does not have to accommodate the religious beliefs of an employee if it would “violat[e] a seniority system; causing a lack of necessary staffing; jeopardiz[e] security or health; or [cost] the employer more than a minimal amount.”
Social and political preferences are not religious beliefs, according to EEOC.
Employment attorney Stacy Cole said employers must make some accommodations for religious beliefs but employees must still do the core, central duties of their jobs. But the attorney added that he’s not comfortable with one employee passing off a same-sex couple to another employee, even in well-staffed offices.
He cited the 2006 case Garcetti v Ceballos, which limited free speech protections for government employees when they are on the job.
Justice Anthony Kennedy wrote the majority opinion that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official’s public duties. Cole said he thinks courts will use this decision to require county clerks to issue marriage licenses to same-sex couples.
“That keeps the court out of marriage and religion,” Cole said, adding that it focuses on the core duties of the county clerk’s job.
ACLU spokeswoman Rebecca Roberts said her organization hasn’t had to file any suits against county clerks in Texas so far, but they’re monitoring what’s going on around the state.
Roberts noted that what she’s seeing is similar to what’s gone on in other states in which marriage equality was law before the Obergefell ruling. After a few weeks of hand wringing, she said, the dust settles.
“When you’re a public official, you have to fulfill your duties,” Roberts said. “Your personal views don’t trump those duties.”
What the ACLU is hearing from most county clerks is that they don’t have the forms yet or their computers aren’t updated. New forms were sent to counties across the state on Monday, Roberts noted, adding, “If people are Stonewalling, we want to know.”
The ACLU hotline number is 888-503-6838.
Omar Narvaez, a community educator for Lambda Legal, said his organization has had “multiple discussions with county clerks” since the Supreme Court handed down its ruling. Some of those had questions; others were waiting for updated forms or computer updates.
But each conversation, Narvarez said, resulted in those clerks beginning to issue licenses to same-sex couples.
Narvaez also pointed out not every county uses the same software, so updates that many counties had on Monday hadn’t gotten to some of the smaller, rural counties with different systems as quickly.
While not all counties are complying, Narvaez said, “It’s moved faster than I was expecting.”
He added Lambda Legal has a legal help desk for anyone denied a license or a service that flows from having that license.
One woman that recently moved to Mesquite from Illinois had been refused a driver’s license with her wife’s last name, the name she’s been using for five years. That was last week. This week, the Texas Department of Public Safety Office in Rockwall recognized the marriage license as her official name change document.
Narvaez said his office would be interested in hearing from anyone denied the marriage license, has problems signing a lease as a married couple, getting names onto a child’s birth certificate or is refused an adoption.
Now that marriage is legal, there shouldn’t be problems relating to marital status in any of these transactions, Narvaez said. But if there are, they need to be corrected, he added.
He said he was also interested in judges who were refusing to marry same-sex couples. Prior to the SCOTUS decision, Dallas County Civil District Judge Tonya Parker refused to perform any weddings — including opposite-sex weddings — until this week, because she couldn’t legally perform weddings for all couples.
Judges must treat all couples equally. They can’t marry opposite-sex couples and not same-sex couples.
For more information, Lambda Legal and other organizations created MarriageEqualityFacts.org.
This article appeared in the Dallas Voice print edition July 3, 2015.