WASHINGTON — In the wake of the U.S. Supreme Court’s decision legalizing same-sex civil marriage nationally, several Southern state officials vociferously criticized Obergefell v. Hodges — but despite a few pockets of resistance, most municipal and county clerks in those states almost immediately began issuing civil marriage licenses to same-sex couples.
Since the U.S. Supreme Court, in a 5-4 ruling on June 26, declared a constitutional right to same-sex marriage, several state officials and others have raised religious-liberty concerns and called for new legislation at the state and federal levels to safeguard religious freedom.
Texas Attorney General Ken Paxton went as far as saying that local officials can refuse to issue marriage licenses to same-sex couples on religious grounds and that judges and justices of the peace can opt out of performing those ceremonies.
“The reach of the court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty. Our religious liberties find protection in state and federal constitutions and statutes,” Paxton said in a prepared statement.
Paxton warned that clerks who refuse to issue same-sex “marriage” licenses can be sued, though he promised that “numerous lawyers stand ready to assist clerks defending their religious beliefs,” on a pro-bono basis in many cases.
Douglas Laycock, a leading authority on religious-freedom issues at the University of Virginia School of Law, told the Register that Paxton is on solid legal ground, noting that municipal and county governments are obligated to issue same-sex marriage licenses, while individual clerks have religious-liberty rights.
“The clerks can opt out, but they have to do it in a way that doesn’t leave the same-sex couples without the services. Someone has to be available to do it,” Laycock said.
Some clerks chose to resign rather than compromise their moral convictions. Dana Guffey, a clerk in Cleburne County, Ark., told local news outlets she was leaving her post after 24 years because she had a moral objection to issuing same-sex marriage licenses. She added that her decision was not motivated by hate, but by morality.
In Kentucky, a handful of county clerks initially refused to issue any marriage licenses, even to heterosexual couples, prompting a spokeswoman for Attorney General Jack Conway to say the Supreme Court “issued the final word on this issue.” Some of those clerks relented after conceding that federal law now says marriage licenses must be issued to same-sex couples.
Binding Legal Precedent
Technically, the Supreme Court’s judgment in Obergefell v. Hodges is only directly binding on the four states specifically named in the case: Ohio, Tennessee, Michigan and Kentucky. The court also gave the states three weeks to seek reconsideration, which offered some legal leeway for Louisiana’s Clerks Association initially to advise clerks to wait for the end of those weeks before issuing marriage licenses to same-sex couples. The state subsequently told clerks they could proceed with issuing the licenses.
Alabama Supreme Court Chief Justice Roy Moore, who said same-sex “marriage” is “not in accordance” with the Constitution, stalled the Supreme Court’s ruling in his state during the three-week consideration period, though he acknowledged the ruling sets a precedent.
However, clerks in Alabama’s urban counties, as well as Louisiana and other states where same-sex “marriage” was previously not recognized, almost immediately began issuing those licenses because, as Laycock noted, the Supreme Court’s decision is binding on all lower federal courts. Those same courts would eventually force municipalities and counties to comply.
“Any county that is not complying a same-sex couple can now sue to enforce the Supreme Court’s opinion against that county, and the litigation will go very quickly because the outcome is now obvious,” Laycock said.
He added, “The county can drag its feet and wait to be sued. It can take a few months, but they have pretty strong incentives not to do that.”
Most Republican governors in states where same-sex “marriage” was not previously recognized said they would comply with the Supreme Court decision. Gov. Nathan Deal of Georgia said his state was “subject to the laws of the United States.” Gov. Asa Hutchinson of Arkansas said that while he did not care for the ruling, he would “direct all state agencies to comply with the decision.”
In Louisiana, Gov. Bobby Jindal, who announced June 24 that he is seeking the Republican presidential nomination, told NBC’s Meet the Press, “Of course we’re going to comply with a court order; we don’t have a choice.”
But Jindal also warned in a prepared statement that the ruling “tramples” on states’ rights and could “pave the way for an all-out assault against the religious-freedom rights of Christians who disagree with this decision.”
Kansas Gov. Sam Brownback, who, like Jindal, is Catholic, decried the ruling and said his administration would be reviewing the ruling to understand its effects on Kansas residents.
On June 26, Texas Gov. Greg Abbott issued a directive ordering state agencies to “prioritize compliance” with the First Amendment and the Texas Religious Freedom Restoration Act. The directive says state agencies should make sure that nobody “takes any adverse action against” people “substantially motivated by sincere religious belief.”
Wisconsin Gov. Scott Walker called for a constitutional amendment to reaffirm the ability of the states to continue to define marriage. U.S. Rep. Raul Labrador, R-Idaho, recently introduced the First Amendment Defense Act, which would prohibit the federal government from punishing individuals and institutions that refuse to accommodate same-sex “marriage.”
“I would expect state legislatures to follow suit because the court has written another chapter in the debate, but it has not ended the debate. The court has forced the hand of legislators to step in and defend religious liberty,” said Roger Severino, director of the Heritage Foundation’s DeVos Center for Religion and Civil Society.
Meanwhile, on the state level, legislatures have moved to enact their own versions of the federal Religious Freedom Restoration Act, which forces the government to prove compelling reasons to enact laws that infringe on religious practice. Today, 21 states have Religious Freedom Restoration Acts, and at least 17 states as of mid-June had introduced legislation creating or altering existing laws affecting religious freedom, according to the National Conference of State Legislatures.
However, Laycock said that such laws, while they may protect religious institutions, do not shield business owners and individuals from civil-rights claims “because they are just too general and leave the decisions up to judges.”
“What they really need are gay-rights laws with specific religious exemptions. In the blue states that passed gay-rights laws [laws that prohibit discrimination on basis of sexual orientation] long ago, most of them have exemptions for religious institutions. Some of them are broad; some are narrow.”
“Going forward, the obvious deal to be done is to enact gay-rights laws with religious exemptions,” Laycock added. “But that deal is very hard to negotiate because both sides are intransigent. The Republicans don’t want the gay-rights laws, and the Democrats don’t want the religious exemptions.”
Another related political struggle will be the push for laws that prohibit discrimination in employment, housing and public accommodations on the basis of sexual orientation and gender identity. Currently, 18 states ban discrimination on both fronts, while New York, New Hampshire and Wisconsin prohibit discrimination on sexual orientation.
Municipal governments across the country have also enacted similar non-discrimination laws, which can and have been used against wedding vendors who refuse to cater to same-sex wedding ceremonies, which often have a religious significance.
“The key is whether there is a public-accommodation law in your jurisdiction that covers gay rights,” Laycock said. “It’s not the Supreme Court decision that’s binding on the wedding vendor. It’s the gay-rights laws. Gay-rights groups will be trying to enact those gay-rights laws in states and at the federal level. That is going to be an uphill fight, too.”
Brian Fraga writes from
Fall River, Massachusetts.