Harris County Attorney to Judges: Marry Gay Couples or Marry No One
Photo by Max Burkhalter

Harris County Attorney to Judges: Marry Gay Couples or Marry No One

The U.S. Supreme Court ruling granting same-sex couples the right to marry came down nearly a week ago, and still clerks in numerous Texas counties are refusing to follow the ruling and do their jobs

You can largely thank state Attorney General Ken Paxton for that particular embarrassment. It was Paxton who, anticipating a SCOTUS ruling favoring marriage equality, issued a memo last Thursday telling clerks to hold off on issuing same-sex marriage licenses until they got “direction and clarity” from his office. Harris County Clerk Stan Stanart appeared to be perfectly fine waiting last Friday, initially turning down gay couples who wanted licenses following the Supreme Court ruling. Amid loud cries for him to follow the High Court's ruling, Stanart only budged and started issuing licenses late Friday afternoon after one couple threatened to file a lawsuit and Harris County Attorney Vince Ryan vowed to seek a court order forcing Stanart's hand. 

And then, two days later, came Paxton's official opinion: judges, county clerks and justices of the peace or their employees don't have to participate in same-sex marriages if they harbor religious objections. That's some precarious legal advice, especially when you consider this is the guy who could soon be facing a first-degree felony securities fraud charge. Paxton even admitted as much, telling county clerks across the state that, sure, you might get sued if you refuse to issue same-sex marriage licenses, but there's an army of pro-bono, gay-marriage-hatin' lawyers waiting and ready to help you fight your case. Even clerks in line with Paxton's opinion on gay marriage felt burned by the state's official position. Emails obtained by the Fort Worth Star-Telegram this week show one such clerk venting to colleagues that state leaders "hung us all out to dry, threw us under the bus.”

Harris County Attorney Ryan wants to make sure county employees and judges don't the flout the law under the guise of religious freedom. On Wednesday, Ryan issued a legal opinion saying any judge or justice of the peace who chooses to perform marriages – something they're permitted, but not required to do – must also marry same-sex couples. “It's all or nothing,” Ryan said in a statement. “Judges and JPs are not required to perform marriages. However, if they perform marriages for anyone, they cannot legally discriminate against same-sex couples by refusing to perform only those marriages. Everyone must be treated the same under the law.” 

Ryan also addressed Paxton's opinion – that county clerks or deputy clerks have the right to “defend their religious objections – head-on. If you're a deputy clerk, and your faith precludes you from helping marry a gay couple, then you must find someone else in the office to issue the marriage license. If no other clerks are available, you're required by law to issue a license. 

“The U.S. Supreme Court has said that the right to marry is a fundamental right protected by the U.S. Constitution and that it applies equally to all couples who seek to marry,” Ryan said. “The right to marry is also derived from the equal protection and due process guarantees of the Fourteenth Amendment. Bottom line: same-sex couples are equal under the law and that is now the law of the land.”

Meanwhile, the federal Fifth Circuit court of appeals finally took action Wednesday, ordering judges in Louisiana, Mississippi and Texas wrap up their pending gay marriage cases in line with last week's Supreme Court ruling, setting a July 17 deadline. A federal judge in Texas had already struck down the state's same-sex marriage ban as unconstitutional last year, and Fifth Circuit heard arguments in that case in January. While its decision was pending, the Supreme Court announced it would hear Obergefell v. Hodges, the Cincinnati case that would ultimately overturn gay-marriage bans across the country.

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