Some states putting up fight over gay marriage

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 conflicting 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 facilitate such marriages, especially when there may be other county employees and judges with no similar reservations 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 must 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,” Attorney General Ken Paxton said in a separate statement.

While 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 First 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 likely make its way back to the courts.

Likewise in Louisiana, Gov. Bobby Jindal issued a legal memo 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 began issuing same-sex marriage licenses on Monday after receiving clearance from Attorney General 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 if a clerk refuses to issue a marriage license to a same-sex couple, they 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.

Paxton warned that in cases where there is no employee willing to issue a license, those who refuse to license same-sex couples “may well face litigation and/or a fine.”

“Numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro bono basis, and I will do everything I can from this office 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.

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.

“It’s time to end the political games and begin issuing marriage licenses equally in every county of the state of Texas,” said Chad Griffin, president of the Human Rights Campaign.