A clerk in Hood County, Texas, over the past week tried to cite religious objections to deny a same-sex couple a marriage license following the Supreme Court ruling that brought marriage equality to all 50 states. But the clerk's attempt to obstruct the Supreme Court decision went exactly as many legal experts expected: It failed horribly.
Jim Cato and Joe Stapleton, who've been together for 27 years, have been trying to get a marriage license from Hood County Clerk Katie Lang's office since the Supreme Court ruling. But after facing repeated denials and a barrage of different excuses — including a claim that the couple would have to wait a few weeks for the proper forms — the couple on Monday filed a federal lawsuit, according to the Dallas Morning News's Robert Wilonsky. Within a couple hours, the clerk's office relented — and offered the couple a license, with the exact same form for same-sex couples the office had said it couldn't use the previous week.
But this chain of events should have been expected all along by the clerk's office. Legal experts have consistently warned that religious objections simply can't be cited as grounds to discriminate against same-sex couples – because state and county governments are required to avoid violating a couple's constitutional right to marry.
Clerks' religious objections aren't going to keep same-sex couples from marrying
Part of the legal confusion may have come from state leadership: Texas Attorney General Ken Paxton on June 28 issued a statement suggesting that county clerks can deny same-sex couples marriage licenses if they have genuine religious objections to marriage equality. But while it's true that individual officials may be able to refuse service to same-sex couples, religious objections aren't going to hold up in court as a means to discriminate.
Here's how it works: If a same-sex couple shows up at a county clerk office to get married, an individual official can refuse to grant them a license. But the official would have to hand the case over to another county staffer, who would then give the license to the couple. The issue is that individual government employees may refuse — based on religious objections — to marry same-sex couples, but the county government as a whole has a compelling interest to accommodate the couple and avoid violating their constitutional right to marry.
"The conscientious objector clerk and the clerk who is willing to issue the license need to just trade places," Douglas Laycock, an expert on religious freedom laws at the University of Virginia School of Law, wrote in an email. "I don't think the county could require the same-sex couple to go stand in a different line, or come back on a different day."
The problem arises when no one in a county clerk office is willing to marry a same-sex couple. In that case, the county would have to find a way to accommodate the couple or risk violating the Supreme Court's ruling.
"If the situation arises, someone has to issue the license," Laycock explained. "I would think the responsibility falls on the elected clerk.… But the county has a constitutional duty, and there is a compelling government interest in requiring someone to perform that duty."
South Texas College of Law professor Josh Blackman reached similar conclusions in a blog post. "[T]he clerk would be in trouble if no one in her office was able to issue licenses, or did so in such a manner to unduly delay its issuance," he wrote.
Paxton's full legal opinion acknowledges this issue, suggesting that county officials could face litigation if no one can marry the couple: "Factual situations may arise in which the county clerk seeks to delegate the issuance of same-sex marriage licenses due to a religious objection, but every employee also has a religious objection to participating in same-sex-marriage licensure. In that scenario, were a clerk to issue traditional marriage licenses while refusing to issue same-sex marriage licenses, it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution."
Shelley Coston, the county clerk in Bell County, appeared to acknowledge the issue in a statement. Although Coston is opposed to marriage equality, she seemed to conclude that trying to oppose the Supreme Court's ruling would lead to a costly, losing legal battle: "The costs of defending such a lawsuit and the potential for damages would be substantial. I cannot do that to our taxpayers." As a result, individual deputy clerks will be able to refuse to marry same-sex couples, but the clerk's office as a whole will marry them.
So some individual county officials will be able to abstain from granting marriage licenses to gay and lesbian couples — but same-sex marriages will go on in some form in all Texas counties, even if it requires litigation like Cato and Stapleton's in the short term.