Thoughts on the Texas Attorney General’s Decision Concerning Same-Sex Marriage Licenses

June 29th, 2015

Yesterday, Texas Attorney General Ken Paxton issued an opinion concerning whether individual state officers may decline to issue marriage licenses to same-sex couples,. Here is a summary of the conclusions:

County clerks and their employees retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses. The strength of any such claim 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 means of the government ensuring the ceremonies occur. The strength of any such claim depends on the particular facts of each case.

Many in the media have characterized this opinion as an end-run around the Court’s decision in Obergefell. I read it as much, much more narrow, in terms of a staffing directive to provide religious accommodations under the Texas Religious Freedom Restoration Act.

In Texas, marriage licenses must be issued by (elected) County Clerks, and a license can be obtained by any county clerk regardless of residence. As you may expect, in all County Clerk offices, there is more than one person working. The County Clerk, can delegate his or her authority to Deputy County Clerks and other staff.

The Family Code provides that the “county clerk shall . . . execute the clerk’s certificate on the application” if the application complies with the statutory requirements. Id. § 2.008(a). But the county clerk may delegate this duty to others. Under the Local Government Code, a deputy clerk “may perform all official acts that the county clerk may perform.” TEX. Loe. Gov’T CODE ANN. § 82.005 (West 2008). Thus, under state law, a county clerk may delegate duties to deputy clerks, and deputy clerks have the authority but not the mandatory duty to perform the acts of the county clerk

The scope of the accommodation provided under the Texas Religious Freedom Restoration Act is not whether an entire clerk’s office can decline to issue marriage license, but whether individual employees in that office can decline to participate in that job function through a religious accommodation.

A county clerk has a statutory right to delegate a duty to a deputy clerk, including the issuance of same-sex matTiage licenses that would violate the county clerk’s sincerely held religious beliefs. Regarding deputy clerks and other employees, state and federal employment laws allow them to seek reasonable accommodation for a religious objection to issuing same-sex marriage licenses. And under the Religious Freedom Restoration Acts, deputy clerks and other employees may have a claim that forcing the employee to issue same-sex marriage licenses over their religious objections is not the government’s least restrictive means of ensuring a marriage license is issued, particularly when available alternatives would not impose an undue burden on the individuals seeking a license.

Under state law, the Attorney General concluded that a county clerk can determine that a way to avoid infringing on rights protected by RFRA would be to exempt certain employees from issuing same-sex marriage licenses. In any other context, this would be a simple reassignment employee functions, but in light of the salience of this issue, it takes on a much greater significance.

Consider this statement from the Bell County Clerk:

Under state law, Texas Family Code Section 2.008(a), states that County Clerks “shall” issue marriage licenses to conforming applications. Based on state law, revised forms from the Vital statistics Unit, and Attorney General Opinion KP-0025, the Bell County Clerk’s Office will issue marriage licenses to conforming applications, as now defined by the United States Supreme Court. Reasonable accommodations will be made for Deputy Clerks that have religious objections to participating in the issuance of such licenses.

The clerk may not like it, but the office will issue licenses. Individual deputy clerks can seek the accomodation.

The AG’s opinion cites other examples, including exempting pharmacists from issuing drugs that violate conscience–even though access such contraceptions is constitutionally protected.

Courts have balanced similar competing rights in other contexts, and I believe they would likely do so here.7 See, e.g., Stormans Inc. v. Selecky, 844 F. Supp. 2d 1172, 1188-93 (W.D. Wash. 2012) (holding that a state law mandating the issuance of drugs violated pharmacists’ religious beliefs, and that refusing to issue the drugs and referring to another pharmacist was a sufficient practice);

This religious accommodation only becomes a constitutional problem if no one is willing to offer same-sex couples a marriage license–and the AG acknowledges this.

Factual situations may arise in which the county clerk seeks to delegate the issuance of same-sex marriage licenses due to a religious objection, but every employee also has a religious objection to participating in same-sex-marriage licensure. In that scenario, were a clerk to issue traditional marriage licenses while refusing to issue same-sex marriage licenses, it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution.

It would also violate state law for a clerk to issue no marriage licenses at all.

I f instead, a county clerk chooses to issue no marriage licenses at all, it raises at least two questions. First, a clerk opting to issue no licenses at all may find himself or herself in tension with the requirement under state law that a clerk “shall” issue marriage licenses to conforming applications. TEX. FAM. CODE ANN.§ 2.008(a) (West 2006).

In short, so long as a couple can receive the license from a county clerk, there is no constitutional violation. I can’t imagine if a couple is delayed 15 minutes, and then gets the license, a court would grant an injunction. But as my colleague Howard Wasserman noted by email, there could be a suit for $1 nominal damages against the Clerk. And the clerk would be in trouble if no one in her office was able to issue licenses, or did so in such a manner to unduly delay its issuance. (Although, as someone who once waited nearly 3 hours to receive a driver’s license in Texas, I think normal bureaucratic delays should be considered part of the calculus, so long as they are not deliberate).

Under state law, Justices of the Peace and Judges are not required to perform marriage ceremonies at all.

Two aspects of this legal arrangement bear discussing. First, justices of the peace and judges are joined on the list o f those authorized to conduct marriage ceremonies by four other types of persons not employed by state or local government. Second, as previous Attorney General opinions have demonstrated, judges and justices of the peace have no mandatory duty to conduct any wedding ceremony: “Although the Family Code authorizes justices of the peace and county judges, among others, to conduct a marriage ceremony, they are not required to exercise that authority ….”8

If a same-sex couple asks a Judge to perform the ceremony, and the judge declines, I don’t think a claim lies under state law. And nothing in Obergefell said that states have to change their law so that anyone who can perform a same-sex ceremony has to. Again, there may be some delay until the couple goes to the clerk’s office. But I don’t see how a claim can exist against the state judge. Also, I note that under state law, there are no prohibitions on discrimination on the basis of sexual orientation.

In short, the Texas AG’s opinion is far more narrow than some would like it to be. Offices that refuse to issue licenses would be subject to damages. But so long as a license can be issued in a timely manner, I don’t see any couples suffering a cognizable injury.

Update: German Lopez has a thoughtful piece at Vox that analyzes this issue without hyperbole, quoting me and Doug Laycock.

“The conscientious objector clerk and the clerk who is willing to issue the license need to just trade places,” Douglas Laycock, an expert on religious freedom laws at the University of Virginia School of Law, wrote in an email. “I don’t think the county could require the same-sex couple to go stand in a different line, or come back on a different day.”

The problem arises when no one in a county clerk office is willing to marry a same-sex couple. In that case, the county would have to find a way to accommodate the couple or risk violating the Supreme Court’s ruling.

South Texas College of Law professor Josh Blackman reached similar conclusions in a blog post. “[T]he clerk would be in trouble if no one in her office was able to issue licenses, or did so in such a manner to unduly delay its issuance,” he wrote.

Update: My colleague Howard Wasserman writes a post, noting that I “basically ha[ve] it right” subject to a few caveats–I agree with each of his caveats.

First, as Josh notes and as I argued in a listserv discussion, dignitary harms caused by discriminatory delays or by being sent to a special line or a different clerk (to say nothing of the extreme case in which the clerk gives a lecture against same-sex marriage before moving the couple to a different line), may be challenged in an action for damages, even if the couple gets the license. The claim probably is worth only $ 1 in nominal damages, but it could proceed and could produce a judgment against the clerk and/or the office. There is a qualified immunity question that goes to the scope of Obergefell–does it mean there is a right of same-sex couples to obtain licenses and to marry in all respects on the same terms (vis a vis the State) as opposite-sex couples. A supervisory or municipal liability claim also is likely if the delays and dignitary harms were caused by employees carrying out formal policies.

Second (and this may be because my religious beliefs do not cause me to oppose same-sex marriage), even recognizing the administrative need, this makes me uneasy because it smacks bit of separate-but-equal. It relies on separate lines and separate clerks. Only it now is being presented as the least restrictive means for the government to satisfy its compelling interest in issuing marriage licenses to qualifying couples. I suppose if it is done respectfully (and a listserv comment indicated this has been working well in Utah), there is not a problem. But if we all can agree that a clerk’s office could not have a special line for mixed-race or interfaith couples (assuming we can), why are same-sex couples and same-sex marriages different? Alternatively, could that concern be resolved by broadening the opt-out to extend not only to opposition to same-sex marriage, but also to other religious objections to other licenses?

Third, what happens if there is only one clerk in the office who will issue these licenses? Can he never break for lunch? Must the office, at least for marriage licenses, shut down for that hour? I do not imagine the office could say “No licenses to same-sex couples from noon-1 p.m.”

Update: The Hood County clerk has refused to issue marriage licenses to same-sex couples.

“I’m standing up for my religious liberty,” said Hood County Clerk Katie Lang, who said her office would not give out same-sex marriage licenses on religious grounds. “I do believe that marriage is for one man and one woman because it did derive from the Bible.”

After the decision Friday, some county officials said they would wait to hear from state Attorney General Ken Paxton, who issued a written opinion Sunday saying clerks with religious objections to same-sex marriages can refuse to issue those licenses. But if they do so, he wrote, they might face fine or lawsuits.

Paxton said pro bono lawyers would be ready to defend those who refuse, noting “the reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty.” Lang said that after reading Paxton’s opinion, she chose to face possible legal action.

“I could get fined and I could get sued,” she said, “but you could get sued for anything.”

As of Monday morning, no couples had asked for a same-sex marriage license from Hood County, Lang said.

Yes, she will get sued, and she will be held liable in her personal capacity for violating clearly established law.