AUSTIN, Texas (CN) — The Texas Senate approved a bill Wednesday that allows county clerks to delegate to other officials the duty of issuing same-sex marriage licenses if the clerks have religious objections to it.
Senate Bill 522, by state Sen. Brian Birdwell, R-Granbury, cleared the Senate by 21-10 vote. Birdwell said in a statement that his bill creates a “statutory balance between the religious liberties of marriage-certifying officials and the rights of all couples to marry, ensuring individuals seeking marriage licenses are neither denied nor delayed service.”
Same-sex marriage was legalized nationwide by the landmark 2015 U.S. Supreme Court decision in Obergefell v. Hodges. It said that the right to marry is guaranteed to same-sex couples by the Due Process Clause and Equal Protection clauses of the Fourteenth Amendment.
In defiance of the Supreme Court, Texas Attorney General Ken Paxton then issued an advisory opinion to county clerks and judges saying they could refuse to issue same-sex marriage licenses.
Paxton claimed that the “lawless” Supreme Court had ignored the “text and spirit” of the Constitution by “manufactur(ing)” a nonexistent right.
More than 200 attorneys then filed an ethics complaint against Paxton, which was rejected by the State Bar of Texas.
SB 522 would change the Texas Family Code by allowing a “certifying official” to issue a marriage license when a county clerk has notified the commissioners court of a “sincerely held religious belief” that prevents the clerk from issuing such a license.
Certifying officials may include a deputy clerk, a judge or magistrate who is willing and available to certify an application for a marriage license, administer the oath and issue the license. If enough certifying officials are not available, the commissioners court may designate one or more county employees or contract with others to provide marriage license services.
The bill says officials who recuse themselves from conducting a marriage ceremony will not be subject to any administrative or civil penalties by the state.
It also says that objecting officials cannot be sued: “A civil cause of action may not be brought against the person based on the person’s refusal to conduct the marriage ceremony.”
State Sen. Sylvia Garcia, D-Houston, successfully amended the bill, so that an undue burden may not be placed on same-sex couples seeking marriage licenses.
“A commissioners court of a county in which the clerk has made a notification under Subsection (a) shall ensure that all eligible persons applying for a marriage license are given equal access to the process and are not subject to undue burden due to the county clerk’s refusal to certify the application for a marriage license, administer the oath, and issue the license,” the amendment states.
Some groups see the bill as a means to discriminate against gay couples.
The Austin nonprofit Equality Texas said in a Facebook post: “SB 522 by Senator Birdwell would permit county clerks and government employees to discriminate against same-sex couples when issuing a marriage license. This religious refusal legislation radically redefines religious freedom and would allow people to use religion as a means to discriminate.”
Texas Freedom Network President Kathy Miller said in a statement: “It’s awful enough that this bill clearly targets same-sex couples. But the bill is so broad it would also allow public officials to discriminate against virtually any Texan.”
Miller said the bill “makes a mockery of religious freedom by allowing public officials to discriminate against virtually anyone who fails to meet their personal moral standards. That could include same-sex couples but also people who have been previously divorced, couples who have lived together outside of marriage, interfaith couples and many others.”
The bill now goes to the Texas House.