Gay marriage: Can religious clerks conscientiously object to issuing licenses?

After the US Supreme Court’s decision declaring same-sex marriage a fundamental right last week, many county clerks and local magistrates soon found themselves at the center of new questions about the scope of religious liberty and the civic responsibilities required by their jobs.

Should there be a kind of “conscientious objector” or religious exemption status for those with deeply held religious objections to same-sex marriage, if other government employees are available to provide couples with their constitutionally guaranteed rights? Can clerks and judges opt out of participating in personally issuing marriage licenses to same-sex couples?

So far, the number of clerks refusing to issue licenses for religious reasons appears to be small. And the vast majority of counties, even in the 13 states most resistant to same-sex marriage, have been issuing licenses to all couples seeking them without incident.

But on Thursday, the American Civil Liberties Union of Kentucky filed a federal lawsuit on behalf of four couples – two same-gender and two opposite-gender – who were denied marriage licenses in a jurisdiction east of Lexington, where a clerk has refused to issue them to anyone.

The Kentucky branch of the ACLU said in statement that the clerk “has the absolute right to believe whatever she wants about God, faith, and religion, but as a government official who swore an oath to uphold the law, she cannot pick and choose who she is going to serve, or which duties her office will perform based on her religious beliefs.”

A Texas couple this week also said they would file suit after a Hood County office continued to refuse to issue them a marriage license. A handful of other Texas jurisdictions likewise continue to refrain from issuing paperwork to same-sex couples.

Even before the high court’s landmark decision making same-sex marriage the law of the land last Friday, religious conservatives had been seeking to bolster legal protections for religious liberty as the landscape for same-sex marriage shifted quickly and dramatically. Such moves had sparked questions about the “public accommodation” responsibilities of religious businesses that object to providing services for same-sex weddings.  

Then, earlier this week, the GOP attorney general of Texas, Ken Paxton, outlined a legal position in which he said federal and state “religious freedom restoration acts,” as well as the religious freedom rights guaranteed by the First Amendment, “may allow accommodation of [county clerks’ and employees’] religious objections to issuing same-sex marriage licenses.” He made the comments in a letter to state officials.

The legal test for any burden placed on religious liberty, according to federal law and at least 19 state laws, is that the burden is the “least restrictive means” available to ensure a “compelling state interest.” If there are other authorized individuals available to issue marriage licenses within a county office, Mr. Paxton reasoned, state officials should be able to maintain their conscience.

Though Paxton noted that clerks and judges with religious objections could expect lawsuits, he added that his office will “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.”

While Paxton came under fire for his assessment of what he called a “lawless” high court ruling, some legal experts found his reasoning sound.

“If, for instance, there are two clerks in an office, only one of whom objects to same-sex marriage, it would be consistent with [the Supreme Court ruling] to allow the non-objector to issue same-sex licenses – as long as this practice neither stigmatized same-sex couples nor imposed significant burdens on them,” wrote Kermit Roosevelt, professor at the University of Pennsylvania Law School, in an op-ed piece for CNN.  

“And in this sense, Paxton is right,” Professor Roosevelt continued. “The state of Texas must issue same-sex marriage licenses, but in appropriate circumstances, individual clerks may be excused.”

Earlier this week, Hood County Clerk Katie Lang e-mailed her office saying, “We are not issuing [licenses] because I am instilling my religious liberty in this office.” After a backlash, however, Ms. Lang said in a statement that although the “religious doctrines to which I adhere compel me to personally refrain from issuing same-sex marriage licenses,” her office would have staff “available and ready” to issue licenses once it gets the “appropriate forms” delivered. 

The attorney for the couple seeking a marriage license in Hood County said the office indicated it might take three weeks to get the new paperwork. “We sent them the link to the website with the form they are supposed to use,” said attorney Jan Soifer, according to The Dallas Morning News. “It’s posted. It’s available to them. We know 205 other counties in Texas have already been issuing them.”

“This is just a pretext to deny them of their constitutional right to get married,” said the couple’s other attorney, Austin Kaplan. “This is a humiliation. And this is what the Supreme Court says can’t happen anymore.” They plan to sue the county on Monday.

On Friday, about 150 Texas attorneys signed a letter to Paxton, warning that they may file a complaint with the state bar over his legal position.

“It seems to us that your edict to encourage Texas clerks to violate a direct ruling of the United States Supreme Court violates” the state bar's rules requiring attorneys to uphold the US Constitution, the letter states, according to The Texas Tribune.