On Sunday, Texas Attorney General Ken Paxton issued a formal opinion declaring that county clerks throughout the state may refuse marriage licenses to same-sex couples. Clerks need only state that serving a gay couple would violate their “sincerely held religious beliefs,” Paxton explained, and they are exempt. Paxton also wrote that anti-gay clerks may be sued, but that “numerous lawyers stand ready to assist clerks defending their religious beliefs,” possibly without charge. On Facebook, he described the Supreme Court’s decision bringing marriage equality to Texas (and every state) as a “lawless” decision by an “activist” court and “a dilution of marriage as a societal institution.”
Paxton believes that Texas’ Religious Freedom Restoration Act gives clerks the right to turn away gays, because serving them would substantially burden their religion. (Texas’ RFRA is nearly identical to the Indiana law that caused such an uproar in March.) If a clerk is unwilling to serve a gay couple, he may simply delegate the duty to a deputy clerk. And if every clerk and deputy clerk at a county clerk’s office denies service to gay couples? Paxton has no real answer, except to say that the couple might sue to vindicate their newly minted constitutional right to marry.
At least one Texas county clerk has already turned away gay couples. More are likely to follow suit in the deep red state. The Texas legislature may consider passing a North Carolina-style law that permits clerks to opt out of performing marriages or issuing licenses.
But the North Carolina law forbids clerks from performing any marriage, gay or straight, once they’ve opted out. Under Paxton’s interpretation of his state’s RFRA, Texas clerks are encouraged to marry straight couples while turning away gay couples. That’s the kind of blatant discrimination that gay rights advocates sought to avoid by pushing a non-discrimination amendment to Indiana’s RFRA. Texas’ law has no such protections for LGBTQ people, so clerks can openly refuse service to gays simply because they are gay. That’s religious liberty in action.
Want to hang out with Outward? If you’ll be in or near New York City on Monday, July 13, join June Thomas, J. Bryan Lowder, and Mark Joseph Stern—and special guests Ted Allen, of Queer Eye and Chopped fame, and marriage-equality campaigner extraordinaire Evan Wolfson—for a queer kiki at an Outward LIVE show, hosted by City Winery. Details and tickets can be found here.