Texas AG: State Officials Can Refuse to Issue Marriage Licenses on Religious Freedom Grounds

By Published on June 29, 2015

Texas Attorney General Ken Paxton told state officials Sunday they can refuse to issue same-sex marriage licenses or otherwise refuse to participate in same-sex marriage ceremonies on religious grounds.

“We find that although it fabricated a new constitutional right in 2015, the Supreme Court did not diminish, overrule, or call into question the First Amendment rights to free exercise of religion that formed the first freedom in the Bill of Rights in 1791,” Paxton said in a statement announcing the AG office’s opinion of Friday’s ruling against same-sex marriage bans.

The government cannot force county clerks or their employees to issue marriage licenses, if they object for religious reasons, Paxton argues, and it cannot force justices of the peace or judges who object for religious reasons to conduct same-sex marriage ceremonies.

Paxton acknowledged state officials who try to object this way may face litigation or other penalties, and warned the strength of any such claim will depend on the specific case. But he said “numerous lawyers” are ready to defend state officials defending their religious liberty, on a pro-bono basis if necessary, and that his office will publicly defend them.

“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,” Paxton said.

If one of his employees objects to issuing same-sex marriage licenses on religious grounds, Dallas County Clerk John Warren said Sunday he will simply re-assign them to other duties. “Some people are extremely religious, and I will respect that,” he told The Dallas Morning News.

The legal director for the National Center for Lesbian Rights, Shannon Minter, said that’s unconstitutional. “Public officials have no constitutional or statutory right to discriminate in providing public services,” Minter told The Washington Post in response to Paxton’s opinion.

Denton County Clerk Juli Luke opposes same-sex marriage for religious reasons, but has announced she intends to comply with the Supreme Court ruling, reported The Dallas Morning News. “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,” she said.

In his opinion, Paxton said refusing gay couples on religious grounds does not violate the oath of office, because the same laws officials swear to defend, which now allow same-sex couples to marry, are the same laws that protect their religious liberty.

“It would be curious indeed for an oath that ends with ‘so help me God’ to mandate that the oath-taker set aside those very beliefs,” Paxton said.


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