Texas Attorney General Ken Paxton issued an opinion on Sunday encouraging county clerks to ignore the Supreme Court and refuse to issue marriage licenses to same sex couples. The opinion states that county clerks’ “religious freedom” allows them to refuse to issue marriage licenses to same-sex couples. In Friday’s decision, the Supreme Court ruled that same-sex couples have a constitutional right to such a license.
Paxton says whether a clerk could legally refuse “depends on the particular facts of each case.” He provides no guidence as to what facts would justify a refusal. He also acknowledges that his opinion could result in a same-sex couple being unable to obtain a marriage license in Texas. “[I]t is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution,” Paxton writes.
In a press release, Paxton encourages clerks to deny licenses to same-sex couples anyway, stressing that “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.” According to Paxton, “Texas must speak with one voice against this lawlessness,” referring to the Supreme Court’s decision in Obergefell v. Hodges.
Legal analysts in Texas were unimpressed with Paxton’s opinion, which is not legally binding but highly influential in Texas courts. “We settled the idea that public officials can pick which citizens to serve or not in the ’50s and ’60s civil rights litigation. They cannot,” said Austin lawyer Jody Scheske. Neel Lane, a Texas attorney who has represented same-sex couples, called Paxton’s opinion “a red herring that is intended to whip up the base but… is legally deficient.”
The Texas Freedom Network, a state group dedicated to religious freedom and civil liberties, blasted Paxton. “This reckless and irresponsible attorney general has effectively declared war on the Constitution’s guarantee of equality under the law for all,” the group said in a release. The Texas ACLU added that religious freedom was a constitutionally protected right but it “doesn’t mean that government officials can use their personal religious beliefs to avoid following the law regarding marriage.”
Nevertheless, Paxton has been effective in delaying marriage equality from coming to most parts of Texas. As of Sunday, according to this chart from the Dallas Morning News, most Texas counties were not issuing same-sex marriage licenses.
Paxton is an adamant opponent of same-sex marriage. The day the Supreme Court issue its ruling he called it an “assault on the actual text of the U.S. Constitution and the rule of law itself.” He called the decision “ a radical departure from countless generations of societal law and tradition” and predicted “impact of this opinion on our society and the familial fabric of our nation will be profound.”
Now, it appears he’s taking matters into his own hands.