VOWS AGAINST GAY MAR­RIAGE

Con­fu­sion reigns in Texas af­ter a top of­fi­cial’s de­fi­ant state­ment

Los Angeles Times - - FRONT PAGE - By Molly Hen­nessy- Fiske

HOUS­TON — The U. S. Supreme Court de­ci­sion es­tab­lish­ing that same- sex cou­ples have a con­sti­tu­tional right to marry has left some state of­fi­cials grap­pling with another le­gal ques­tion: Are gov­ern­ment em­ploy­ees with conf lict­ing re­li­gious be­liefs ob­li­gated to is­sue li­censes and per­form wed­dings for gay part­ners?

The is­sue has come quickly to a boil in Texas, where the state at­tor­ney gen­eral is­sued a non­bind­ing opin­ion over the week­end sug­gest­ing that jus­tices of the peace, judges, county clerks and their em­ploy­ees have a con­sti­tu­tional right of their own to refuse to fa­cili- tate such mar­riages, es­pe­cially when there may be other county em­ploy­ees and judges will­ing to do the job.

“Texas must speak with one voice against this law­less­ness, and act on mul­ti­ple lev­els to fur­ther pro­tect re­li­gious lib­er­ties for all Tex­ans, but most im­me­di­ately do any­thing we can to help our county clerks and public of­fi­cials who now are forced with de­fend­ing their re­li­gious be­liefs against the court’s rul­ing,” Atty. Gen. Ken Pax­ton said in a sep­a­rate state­ment.

Although the Supreme Court found that the right of same- sex cou­ples to marry is en­shrined un­der the due process and equal pro­tec­tion clauses of the 14th Amend­ment, the at­tor­ney

gen­eral’s opin­ion as­serts that county of­fi­cials and their em­ploy­ees “pos­sess con­sti­tu­tional and statu­tory rights pro­tect­ing their free­dom of re­li­gion” un­der the 1st Amend­ment.

The re­sult was a state of le­gal con­fu­sion across Texas, as some county clerks be­gan is­su­ing li­censes to gay cou­ples and oth­ers con­tacted lawyers for ad­vice. Le­gal ex­perts said the ques­tion would prob­a­bly make its way back to the courts.

Like­wise in Louisiana, Gov. Bobby Jin­dal is­sued a le­gal memo Mon­day or­der­ing that “rea­son­able ac­com­mo­da­tions” should be made for lo­cal clerks and jus­tices of the peace who have a re­li­gious ob­jec­tion to opt out of grant­ing mar­riage li­censes to gay cou­ples.

In Mis­sis­sippi, clerks in some coun­ties be­gan is­su­ing same- sex mar­riage li­censes Mon­day af­ter re­ceiv­ing clear­ance from state Atty. Gen. Jim Hood. Hood had ini­tially ad­vised county clerks that the de­ci­sion would not take ef­fect un­til a stay was lifted on a U. S. dis­trict judge’s or­der over­turn­ing the state’s same- sex mar­riage ban.

On Mon­day, Hood sent an email to clerks af­firm­ing that the Supreme Court’s rul­ing “is the law of the land,” and that if a clerk re­fuses to is­sue a mar­riage li­cense to a same- sex cou­ple, he or she could be sued.

Else­where in the coun­try, gay and les­bian cou­ples were largely ob­tain­ing mar­riage li­censes with­out re­stric­tion, de­spite some pock­ets of re­sis­tance and un­cer­tainty in the South.

Back­ers of same- sex mar­riage have in­sisted that is­su­ing mar­riage li­censes is a fun­da­men­tal gov­ern­men­tal re­spon­si­bil­ity that un­der the Supreme Court’s de­ci­sion last week now in­cludes the obli­ga­tion to is­sue them with­out re­gard to sex­ual ori­en­ta­tion.

“Is­su­ing a mar­riage li­cense is no dif­fer­ent than is­su­ing a hunt­ing li­cense, a fish­ing li­cense or a driver’s li­cense. It’s a ba­sic func­tion of gov­er­nance, and you don’t have a right to with­hold it based on the in­di­vid­ual em­ployee’s re­li­gious be­liefs,” said Neel Lane, a San An­to­nio at­tor­ney for same- sex cou­ples who chal­lenged Texas’ gay mar­riage ban.

Texas over­whelm­ingly passed the ban as a state con­sti­tu­tional amend­ment in 2005, and some op­po­nents were pre­pared to con­tinue to fight even af­ter the Supreme Court rul­ing.

Pax­ton wrote that county clerks with re­li­gious ob­jec­tions are also pro­tected by the fed­eral Re­li­gious Free­dom Restora­tion Act as well as a state ver­sion of the law. They can ask another em­ployee in their of­fice to is­sue li­censes, but he warned that those who refuse “may well face lit­i­ga­tion and/ or a fine.”

“Nu­mer­ous lawyers stand ready to as­sist clerks de­fend­ing their re­li­gious be- liefs, in many cases on a probono ba­sis, and I will do ev­ery­thing I can from this off ice to be a public voice for those stand­ing in de­fense of their rights,” Pax­ton said.

His opin­ion was echoed by Repub­li­can Gov. Greg Ab­bott, who is­sued a di­rec­tive Fri­day to state agen­cies to pro­tect the re­li­gious lib­er­ties of all Tex­ans.

Of­fi­cials is­su­ing mar­riage li­censes and of­fi­ci­at­ing at wed­dings in Texas’ 254 coun­ties are rel­a­tively au­ton­o­mous. Some in the Austin, Dal­las, Hous­ton and San An­to­nio ar­eas li­censed same- sex cou­ples, while oth­ers balked.

Out­side Dal­las, Denton County Clerk Juli Luke ini­tially re­fused to is­sue same­sex mar­riage li­censes, but re­versed her­self Mon­day af­ter up­dat­ing forms and con­fer­ring with out­side coun­sel.

“Per­son­ally, same- sex mar­riage is in con­tra­dic­tion to my faith and belief that mar­riage is be­tween one man and one woman,” Luke said in a state­ment. “How­ever, first and fore­most, I took an oath on my fam­ily Bi­ble to up­hold the law and as an elected public of­fi­cial my per­sonal belief can­not pre­vent me from is­su­ing the li­censes as re­quired. More­over, my faith in Christ en­sures I have com­pas­sion and re­spect for those who feel dif­fer­ently.”

The Lib­erty In­sti­tute, a con­ser­va­tive le­gal group based near Dal­las, was con­tacted by of­fi­cials in Denton and other coun­ties about laws pro­tect­ing their re­li­gious free­doms.

“Most of the calls we’re get­ting, em­ploy­ees didn’t know about these laws and they’re re­ally con­fused,” said Lib­erty In­sti­tute Pres­i­dent and Chief Ex­ec­u­tive Kelly Shackelford. “One lady was cry­ing and say­ing, ‘ I was told by the county at­tor­ney that I could go to jail or be sued if I don’t do this.’ ”

Shackelford said his of­fice had an­tic­i­pated that the rul­ing would “open up a whole bat­tle­field on re­li­gious free­dom,” and now he ex­pected it would start a “wave of law­suits.”

He said those who ob­jected were not look­ing to block the law, they just wanted ac­com­mo­da­tions that al­lowed them not to have to is­sue li­censes or marry same- sex cou­ples.

He cited pre­vi­ous le­gal cases in which a Mus­lim woman suc­cess­fully sued Aber­crom­bie & Fitch for deny­ing her a job be­cause of her head scarf; phar­ma­cists won the right to refuse to sell con­tra­cep­tion that went against their re­li­gious be­liefs; and em­ploy­ees fired for re­fus­ing to work on Satur­days won the right to be of­fered dif­fer­ent shifts.

Shackelford said of­fi­cials could ac­com­mo­date re­li­gious ob­jec­tions by as­sign­ing a dif­fer­ent em­ployee to is­sue mar­riage li­censes. “There’s a right for a per­son to ob­tain a li­cense, but there isn’t a right to make that par­tic­u­lar per­son do it,” he said. Oth­ers dis­agreed. “There is no re­li­gious right to ob­ject to it, pe­riod,” said Jesse Choper, a law pro­fes­sor at UC Berke­ley. “As long as a law has a clear ap­pli­ca­tion — that is, it does not ap­ply just to re­li­gious groups — the free ex­er­cise clause says it’s not vi­o­lated. It has to sin­gle out re­li­gion.”

Re­becca Robert­son, le­gal and pol­icy di­rec­tor for the Amer­i­can Civil Lib­er­ties Union of Texas, said that although cer­tain re­li­gious ac­com­mo­da­tions may be made for em­ploy­ees, such as a Sikh sher­iff ’s em­ployee al­lowed to wear a tur­ban and beard to work in the Hous­ton area, “the dif­fi­culty with Atty. Gen. Pax­ton’s opin­ion is that it’s im­ply­ing that there’s some blan­ket re­li­gious ex­emp­tion. That’s not what the 1st Amend­ment means.”

Lane, the San An­to­nio at­tor­ney, said state of­fi­cials were es­sen­tially “en­cour­ag­ing right- wing county of­fi­cials to breach their du­ties.”

“If they do, they’re go­ing to end up pay­ing a lot of at­tor­neys’ fees be­cause they have no le­gal grounds,” he said.

He noted that gov­ern­ment staff whose re­li­gious be­liefs conf licted with is­su­ing other li­censes — a con­ser­va­tive Mus­lim, for in­stance, who doesn’t be­lieve women should drive — were not ac­com­mo­dated, be­cause that’s con­sid­ered dis­crim­i­na­tion. ( Texas law does not gen­er­ally bar dis­crim­i­na­tion against same­sex cou­ples, although some cities do.)

Same- sex mar­riage sup­port­ers held a brief­ing Mon­day on the steps of the state Capi­tol in Austin to call for en­force­ment of the high court’s rul­ing and an ex­pan­sion of le­gal pro­tec­tion for gay cou­ples against dis­crim­i­na­tion.

In Tyler in north­east Texas, D. Karen Wilk­er­son, 64, a Demo­cratic ac­tivist, said that af­ter she and her fi­ancee were turned away by the Smith County clerk Fri­day, they filed a re­quest for a writ in fed­eral court that would have com­pelled the clerk to com­ply with the law, and re­turned at 8 a. m. Mon­day ex­pect­ing more re­sis­tance.

By 9: 30 a. m., Wilk­er­son had posted a photo on Face­book of her mar­riage li­cense and a tri­umphant note: “We got it!”

She and Jolie Smith, 52, planned to wed Mon­day night. And they were not alone.

“My phone and Face­book have just blown up” with news of other same- sex cou­ples get­ting mar­riage li­censes from of­fices where they were pre­vi­ously turned away, she said. “A lot of the county clerks may have seen the hand­writ­ing on the wall.”

Pho­tog r aphs by Eric Gay As­so­ci­ated Press

JIM OBERGE­FELL, sec­ond from left, the plain­tiff in the Supreme Court case, joins other ac­tivists in Austin, Texas, to call on the state to en­force the rul­ing.

TEXAS Atty. Gen. Ken Pax­ton told clerks they can opt out of grant­ing li­censes to gay cou­ples.

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