Texas officials may use religious liberty challenge to issuance of marriage licenses to same sex couples

Houston Chronicle:
Texas Attorney General Ken Paxton on Sunday told county clerks in the Lone Star State their religious beliefs could enable them to flout the U.S. Supreme Court's historic ruling legalizing same-sex marriage, while adding some may face litigation for refusing to issue licenses to gay couples.

"It is important to note that any clerk who wishes to defend their religious objections and who chooses not to issue licenses may well face litigation and/or a fine," Paxton said in a statement accompanying an opinion released Sunday.

"But, numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights."


The opinion - which Lt. Gov. Dan Patrick requested last week - comes just two days after the high court in an historic ruling struck down gay marriage bans in Texas and a dozen other states. Some county clerks here began immediately issuing licenses to same-sex couples, while many others said they would wait until the state updated its licensing form or until Paxton released guidance on how to proceed.

Paxton individually addressed two sets of people in his Sunday opinion: county clerks and their deputies, who issue licenses, and those who can perform marriages.

He said his office believed state religious freedom laws would allow clerks to refuse to issue marriage licenses to same-sex couples if they have sincerely held beliefs that prohibit them from doing so, and if there was someone else present - like a deputy - who would be willing to service the couple.
I understand the argument, but given the court's opinion it will be difficult for public officials to avoid although I think religious officials may have a better chance.  There was dicta in Justice Kennedy's decision that allowed for some religious exceptions and that seemed to go against the cake police too.  Kennedy and the court have unleashed a new round of litigation on this subject.

I think the key argument is going to be whether one can be compelled to participate in the wedding in any capacity where doing so would involve a violation of their religious beliefs.  I think that puts the bakers and the florist in a better position to say no than it does clerical officals who are filing paper work.


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