Texas Attorney General: County Clerks May Refuse to Grant Same-Sex Marriage Licenses on Religious Grounds

In response to the U.S. Supreme Court legalizing gay marriage last week, Texas Attorney General Ken Paxton on Sunday declared that county clerks in the state may refuse to grant same-sex marriage licenses on grounds of religious objection.

“Friday, the United States Supreme Court again ignored the text and spirit of the Constitution to manufacture a right that simply does not exist," Paxton said in a statement. "In so doing, the Court weakened itself and weakened the rule of law, but did nothing to weaken our resolve to protect religious liberty and return to democratic self-government in the face of judicial activists attempting to tell us how to live."

More from Paxton's statement:

“In the Attorney General’s opinion my office issued in response to Lt. Governor 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. 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. This opinion concludes that:

• “County clerks and their employees retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses. The strength of any such claim depends on the particular facts of each case.

• “Justices of the peace and judges similarly retain religious freedoms, and may claim that the government cannot force them to conduct same-sex wedding ceremonies over their religious objections, when other authorized individuals have no objection, because it is not the least restrictive means of the government ensuring the ceremonies occur. The strength of any such claim depends on the particular facts of each case.”

Paxton warned that clerks who refuse to grant same-sex marriage licenses may be sued or fined but that he will support such employees regardless.

“Texas must speak with one voice against this lawlessness, and act on multiple levels to further protect religious liberties for all Texans," he said, "but most immediately do anything we can to help our County Clerks and public officials who now are forced with defending their religious beliefs against the Court’s ruling.”

Paxton's declaration came two days after Texas Gov. Greg Abbott directed state agency heads to respect and preserve employees' religious liberties and First Amendment rights — also in response to the Supreme Court's ruling on gay marriage.

“Texans of all faiths must be absolutely secure in the knowledge that their religious freedom is beyond the reach of government. Renewing and reinforcing that promise is all the more important in light of the Supreme Court’s decision in Obergefell v. Hodges,” Abbott wrote in his memo. “The government must never pressure a person to abandon or violate his or her sincerely held religious beliefs regarding a topic such as marriage.  That sort of religious coercion will never be a ‘compelling governmental interest,’ and it will never be ‘the least restrictive means of furthering that interest.’”

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