Texas Attorney General Ken Paxton (R) on Sunday advised county clerks, magistrates and others who have religious objections to same-sex marriage that they may opt out of providing services to same-sex couples seeking marriage licenses.
Calling the Supreme Court’s ruling Friday allowing same-sex unions nationally a “lawless decision,” Paxton said that his guidance was necessary to protect the religious liberties of hundreds of local officials whose job it is it issue marriage licenses.
“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,” he said in a statement.
The opinion offered a hint of the resistance that is likely to delay or otherwise hamper same-sex marriages in many of the 14 states that before Friday’s ruling did not permit gay couples to wed.
In particular, opponents have stressed the necessity to protect people of faith from being forced to condone or participate in a same-sex ceremony. Gay rights groups have called these efforts discrimination under the guise of religious liberties.
The opinion immediately drew criticism from gay rights groups, which said it was not legally sound. They also plan to press their case in Mississippi and Louisiana, which have held back broadly on providing marriage licenses to same-sex couples.
“Public officials have no constitutional or statutory right to discriminate in providing public services,” said Shannon Minter, legal director for the National Center for Lesbian Rights. “This opinion is wrong on the law, and it does a disservice to officials who need clear, reliable guidance about their duty to follow the law and to provide marriage licenses to all qualified couples.”
In his opinion, Paxton acknowledges the legal vulnerability for local officials who decline to help gay couples. He suggests that clerks and others who do not want to issue same-sex marriage licenses because of “sincerely held” religious beliefs delegate that responsibility to others. But in cases where no official is available to assist gay couples, they could face lawsuits.
“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,” he said.