The past 72 hours have been big ones in Texas—and, indeed, the whole of the United States, but especially in Texas. Texas, for example, is where a straight couple, Lanie Moerbe and Tanner Spears, made headlines for receiving a marriage license on Friday, the same day that the U.S. Supreme Court ruled that the equal protections guaranteed by the Constitution’s Fourteenth Amendment meant that state bans on same-sex marriage, like the one that existed in Texas, were unconstitutional.
In reporting on the challenges faced by gay couples who sought marriage licenses in the immediate wake of the court’s ruling, Austin American-Statesman reporter Claire Osborn found something else fascinating in Williamson County: namely that, as the conservative Central Texas county attempted to delay issuing licenses to same-sex couples, it also spent a portion of the day on Friday delaying the issuance of all marriage licenses, including to opposite-sex couples.
Osborn’s story, which features two updates on the situation faced by Lanie Moerbe and Tanner Spears, is a masterpiece of deadpan reporting. (“Noon Update: […] Lanie Moerbe and her boyfriend, Tanner Spears, have left the Williamson County Justice Center to get lunch.”) The difficulties faced by Moerbe and Spears do indeed appear frustrating. But there’s a real contrast between waiting a couple of hours for a marriage to be recognized and waiting decades, as many gay couples have. The dryest report this side of The Onion continues:
The couple, searching for more information, walked to the marriage license office. Spears asked a clerk in the office for a marriage license. The clerk said none were being issued Friday but that the couple could go to other counties to get the license. The clerk told the couple to find out more from the Williamson County attorney’s office.
The couple then walked up to the second floor and talked to another clerk in the county attorney’s office. The clerk asked them if they were inquiring about same-sex marriage licenses. Spears angrily yelled that he was a “man” and Moerbe was a “woman.” Moerbe then began crying.
“This is horrible,” yelled Spears.
The couple is waiting for a decision on whether the county will issue licenses to heterosexual couples.
“Travis County is issuing gay marriage licenses,” Spears said while waiting in the lobby. “Why can’t we get a heterosexual license here.”
Moerbe and Spears received their marriage license by 12:20 p.m. on Friday, and countless other Texans, many of whom were marrying partners of the same sex, got theirs as well. Indeed, by Friday evening, Travis County had issued 313 licenses to same-sex couples.
Travis County—and other counties throughout the state—issued those licenses before Attorney General Ken Paxton issued his statement offering guidance to clerks and justices of the peace in regards to how Texas would be handling gay marriage after the Court’s ruling.
Paxton’s statement finally came late in the afternoon on Sunday, and it quickly became a national headline. Texas, of course, isn’t the only state that had a ban on gay marriages that was overturned by the ruling, but it’s the only state where the attorney general insisted that county clerks were free to disregard the court’s ruling and refuse to process marriage licenses for same-sex couples if it violated their religious beliefs. Paxton summarized his position on the matter via Twitter:
— Ken Paxton (@KenPaxtonTX) June 28, 2015
Paxton’s statement has surprised observers, to say the least. As the Houston Chronicle reports:
Travis County Clerk Dana DeBeauvoir was one of the several that told her office to immediately begin issuing licenses to same-sex couples on Friday. Reached for comment Sunday, she said after speaking with the county attorney, she placed little stock in Paxton’s opinion.
[…] Calls to multiple other clerks were not immediately returned Sunday.
Neel Lane, who was the attorney for the two same-sex couples that sued Texas for the right to marry, called Paxton’s opinion the “latest ridiculousness” from state officials. He said issuing a marriage license is not a religious act, and state employees who take an oath to serve all Texans equally should not be able to deny the Constitutional rights of any one group.
“This is a red herring that is intended to whip up the base but it is legally deficient. it is legally in error,” said Lane. “If state officials are going to encourage state employees not to comply with their duties…there will be a spate of lawsuits.”
The legal basis for Paxton’s opinion is unclear. The Washington Post talked with several legal experts who found no basis for Paxton’s reasoning—the closest they came to justifying it was speaking with a law professor in New York who admitted that the specific question of whether a state employee was legally able to deny a marriage license to a same-sex couple for religious reasons had not yet been heard in court. And even Paxton himself seems to recognize that this is going to be a hard position for any clerk to defend—he noted within his opinion that clerks who refuse to issue licenses to same-sex couples could find themselves sued or fined.
Paxton’s opinion also contends that justices of the peace who object to gay marriage are free to decline to perform ceremonies, since they’re not required by their official job duties to perform them for anyone. That’s a position that has a bit more legal standing, although it also flies in the face of precedent established by an opinion by one of Paxton’s predecessors in the role of Texas attorney general, who wrote in 1983 that if a JP is performing marriages, they don’t get to pick and choose who they marry. As Fort Worth Star-Telegram reporter Bud Kennedy noted on Twitter, that opinion concludes:
“Once a justice of the peace undertakes to exercise the authority to marry people granted to him by article 1.83 of the Family Code he may not, consistent with the equal protection clause of the United States Constitution, refuse to conduct a marriage ceremony for the reason that the parties are not of the same race.”
That opinion, of course, was about interracial marriage rather than same-sex marriage, but the legal reasoning—which included religious objections then as it does now—remains the same. Paxton isn’t bound by his predecessor’s opinion, but one attorney general directly contradicting a previous one makes things confusing, to say the least.
Also confusing is how, exactly, Paxton arrived at the conclusion that “the reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty.” Indeed, the reach of the Court’s opinion goes well beyond Texas laws, whether the attorney general characterizes them as protecting religious liberty or anything else—it’s a big part of why we have a Supreme Court, to determine if a state law conflicts with the Constitution. The arbiter of how to interpret the Constitution is the U.S. Supreme Court, and when the Supreme Court rules that “the Fourteenth Amendment guarantees gay people the right to get married,” that right is constitutionally protected and cannot be infringed upon by state law any more than the rights guaranteed by the First Amendment, the Second Amendment, and on down the line. Paxton, like anyone else who disagrees with that ruling, is entitled to his opinion, but our system allows for the nine judges of the Supreme Court to determine what the Constitution means, not a given state’s attorney general.
All of this is fairly basic junior high civics class stuff, and so Paxton’s statements from yesterday put the people of Texas in the extremely unusual position of having to seriously wonder if their attorney general is familiar with the Constitution’s supremacy clause.
Of course, the other possibility here is that Paxton is aware of how the Constitution works, and he’s using his platform to secure his conservative bona fides. (His tweet about how the Supreme Court’s rulings stop at state law did contain the conservative hashtag #tcot, after all.) Still, he’s encouraging his clients to break the law.
Ultimately, as county clerks who object to processing marriage license paperwork for gay couples begin following Paxton’s advice, we’ll see some clarity from the courts. Those courts, though, will most likely conclude that “decent and honorable” beliefs are insufficient to prevent them from carrying out their duties in the same manner as they would an opposite-sex couple, as the Supreme Court’s majority opinion from Friday makes clear:
“Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”
While we’ve yet to see our first county clerk use Paxton’s opinion to justify a refusal to provide a marriage license to a same-sex couple, state senator Rodney Ellis has already asked the Justice Department to monitor the situation, citing both the likelihood that Paxton’s opinion urges state employees to violate the constitutional rights of Texans as well as the potential slippery slope of claiming that state employees should be able to determine their job duties based on their own conscience. (“Will judges be able to argue that they should not have to recognize or authorize divorces if it offends their religious sensibilities?”) All of this will shake out in the days—and, perhaps, the weeks and months—to come, but in the meantime, it’s certainly been an eventful 72 hours in Texas.
(Photograph by AP Photo/Eric Gay)