Texas Attorney General Ken Paxton (R) is telling county officials in that state that they can deny marriage licenses to same-sex couples if they have religious objections to doing so.
"Friday, the United States Supreme Court again ignored the text and spirit of the Constitution to manufacture a right that simply does not exist," he wrote in a statement. Several times, Paxton referred to the decision as "lawless," but the core of his argument was this: If a clerk (or judge or justice or employees thereof) has a religious objection to issuing a license to a same-sex marriage, he or she can decide not to do so.
So, is that really the case?
Professor Daniel Pinello of the John Jay College of Criminal Justice in New York noted by e-mail that Texas is under no immediate obligation to issue licenses, because the Court's decision last week only applies to the 6th Federal Circuit. Texas is in the 5th Circuit -- but that circuit will likely soon issue a ruling following with the new decision. Once it does, he writes, "I'm aware of no general legal doctrine or precedent holding that county or other public officials are exempt from abiding by rights articulated by the Supreme Court in the event the religious beliefs of those public employees are in conflict with the federal right."
Ruthann Robson, distinguished professor of law at the City University of New York, explained the question at greater length when we spoke by phone. Whether or not an individual county clerk is allowed to deny a license on religious grounds "is still unresolved," she said. When New York passed its same-sex marriage law several years ago, some clerks resigned rather than issue licenses after Gov. Andrew Cuomo (D) said that accommodation was not an option. In Alabama earlier this year, however, the high court allowed religious objections. (Paxton himself notes that clerks deciding against issuing licenses "may well face litigation and/or a fine.")
For an accommodation to be made, certain questions arise. "Is their religious belief substantially burdened?" Robson asked. "Is it overridden by their status as a public employee? Where is that line? Because as a public employee, you swear to uphold the Constitution." Public employees "don't have full 1st Amendment rights," she said, "because it's balanced against the interest of their employer, which in this case is the government."
What's not allowed, in Robson's estimation, is for a clerk to shut down the issuance of licenses across the board over a personal objection. "The question in terms of accommodation has to do with individuals," Robson said. "So if the entire courthouse closed, that would not be an accommodation."
In that case, the Supremacy Clause kicks in.
The Supremacy Clause, in Article VI of the Constitution, delineates that the Constitution is the "supreme law of the land." Tension between the power of the federal government and individual states is as old as the country itself. Even when something is mandated by federal law -- or by the Supreme Court -- states have often tried to work around it. The most prominent examples center on the tension over slavery that led to the Civil War and, in the war's aftermath, the South's treatment of black Americans.
Earlier this year, our Emily Badger identified a number of times states had tried to reject federal judicial mandates -- including after the 1954 school desegregation case of Brown v. Board of Education.
"This is very similar to the Supremacy Clause in terms of some states' reactions to Brown v. Board of Education," she said. Arkansas passed laws seeking to nullify the decision, resulting in the 1958 Cooper v. Aaron decision, stipulating that the court's decisions could not be nullified. "The Supremacy Clause is clear that the Constitution prevails," Robson said. "The Court has determined that it is the ultimate arbiter of what the Constitution says, and not governors of states or state attorney generals -- which was the case in Brown." So if the question is whether or not a clerk can flatly refuse to issue same-sex marriage licenses from his office, the answer is no. "That's a place where someone would litigate, and that's where contempt would come into the picture," Robson said.
It's important to note that Texas attorney general is an elected position. Paxton ran for the office last year, as then-Attorney General Greg Abbott (R) vied for and won the state's governorship. During his 2014 campaign, Paxton sought and received the endorsement of prominent religious leaders. (He also made a point of reminding voters of the sanctity of at least one part of the Constitution: the 2nd Amendment.)
If a clerk in Texas declines to issue a same-sex marriage license, it's not yet clear what would happen. At the very least, we can expect some legal conflict. Paxton has words of support for clerks in that regard, too.
"[N]umerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis," his statement read, "and I will do everything I can from this office to be a public voice for those standing in defense of their rights."