DALLAS (CN) – Texas Attorney General Ken Paxton’s message that county clerks and judges need not issue same-sex marriage licenses if it violates their religious beliefs roused a bit of furor Monday.
Paxton issued the non-binding advisory opinion Sunday, two days after the Supreme Court’s landmark ruling in Obergefell v. Hodges struck down state bans on same-sex marriage and made it legal nationwide.
“County clerks and their employees retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses,” Paxton’s 6-page letter states .
Paxton warned that clerks might be sued for doing this, and a same-sex couple did sue the Smith County clerk on Monday, for refusing to issue them a license. They called Smith County Clerk Karen Phillips’ refusal not just illegal, but “mean-spirited and petty,” and intended to “humiliate and shame” them. Tyler is the seat of Smith County.
Paxton wrote in his Sunday letter to the clerks: “The strength of any such claims depends on the particular facts of each case. Justices of the peace and judges similarly retain religious freedoms, and may claim that the government cannot force them to conduct same-sex wedding ceremonies over their religious objections, when other authorized individuals have no objection, because it is not the least restrictive mans of the government ensuring the ceremonies occur.”
Paxton said the Religious Freedom and Restoration Act requires governments to use the least restrictive means to further a compelling government interest when “substantially burdening” a person’s religious rights.
He warned that if a judge or county clerk invokes that right and refuses to issue a same-sex marriage license, the applicants could sue.
Paxton said the Supreme Court “again ignored the text and spirit” of the Constitution in legalizing same-sex marriage and “manufacture[d] a right” that does not exist.
“In so doing, the Court weakened itself and weakened the rule of law, but did nothing to weaken our resolve to protect religious liberty and return to democratic self-government in the face of judicial activists attempting to tell us how to live,” he said in a statement Sunday.
“Now hundreds of Texas public officials are seeking guidance on how to implement what amounts to a lawless decision by an activist Court while adhering both to their respective faiths and their responsibility to uphold and defend the U.S. Constitution.” Civil liberties and gay rights groups denounced Paxton’s opinion at a Monday rally at the Texas Capitol.
Rebecca Robertson with the American Civil Liberties Union of Texas said religious liberty does not allow officials “to use their personal religious beliefs” as an excuse to violate the law.
She said a memorandum that Texas Gov. Greg Abbott sent to state agency leaders “seemed to invite” resistance against the Supreme Court ruling.
State Sen. Rodney Ellis, D-Houston, criticized Abbott’s opinion as “significantly increas[ing] the likelihood of civil rights violations” if county officials follow his advice. He asked U.S. Attorney General Loretta Lynch on Monday to monitor the implementation of Obergefell in Texas and to intervene if necessary.
“Officials who take an oath to uphold the Constitution should not be able to deny Texans’ constitutional rights with the backing of state legal guidance,” Ellis wrote. “I have serious concerns about the far-reaching implications of this blanket protection for officials who may choose to ignore the law based on their personal religious beliefs. Will judges be able to argue that they should not have to recognize or authorize divorces if it offends their religious sensibilities? Could a judge refuse to sentence a defendant to the death penalty under his or her belief that ‘thou shalt not kill’ means just that? Where does this end?”
Religion must not be used as “an excuse to discriminate,” Ellis said.
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