Carolyn Davis, Texas’ Attorney General Is Confused About How Religious Liberty Works, Think Progress

Want to get married in Texas? Better make sure the clerk issuing your marriage license thinks your wedding is cool with Jesus — or with God, Krishna, the Qur’an, or whatever other religious deity or set of sincerely-held beliefs shapes the clerk’s conscience when it comes to marriage.

At least, that’s according to Texas Attorney General Ken Paxton. Despite the Supreme Court’s extension of equal protections under the 14th Amendment to LGBT people seeking state-sanctioned marriage, Paxton maintains that county clerks and their employees “retain religious freedoms” that may allow them to use “religious objections” as a reason not to follow the law. In an opinion issued Sunday to Texas Lieutenant Governor Dan Patrick, Paxton argued that state employees can opt out of issuing marriage licenses if they religiously object.

To make his case, Paxton appeals to the same Religious Freedom Restoration Act, or RFRA, that has made headlines in recent months as states have passed legislation designed to discriminate against LGBT Americans. On the federal level, RFRA requires that pursuing a “compelling government interest” must not “substantially burden” an individual’s religious exercise if that government interest can be pursued by “less restrictive means.”

Paxton notes, but does not seem to deeply consider, that Texas’ own version of the federal RFRA actually includes civil rights protections, stipulating that a person with religious objections to a particular law or employment obligation cannot invoke RFRA to override civil rights laws and statutes. Moreover, Texas Family Code Sec.2.205 already asserts that those authorized to perform marriage in the state are “prohibited from discriminating on the basis of race, religion, or national origin against an applicant who is otherwise competent to be married.”

But Paxton remains undeterred — from using religion to discriminate against same-sex couples, anyway. Meanwhile, he is remarkably silent on some provisions that others might fight objectionable on conscience or religious grounds.

Just for fun, let’s look at two of the provisions Texas marriage law does cover: minors and “informal marriages.”

Texans aged 14 and older can get married with a judge’s permission.

Under the Texas Family Code Sec.2.103, a minor who’s 14 years old or above can petition the court to supersede parental objection to receive a state marriage license.

Texans can receive “informal marriage” licenses.

Under Texas Family Code Sec. 2.401, if couples have declared at some general time that they are, in fact, married, and then tell other folks that they are married, they can head down to the county clerk’s office and file for an “informal marriage license.”

And guess what? In either of these cases, Paxton seems uninterested in what to do if a state employee has a problem with these arrangements on religious grounds. Paxton’s general lack of concern with upholding the rights of state employees who might, say, object to a marriage between two 14-year-olds, or a marriage between a couple “living in sin,” reveals once again these kinds of efforts for what they are: Attempts to obstruct the rights of LGBT Americans to exercise what is now a constitutionally-protected freedom.

Using religious protections in this way opens a Pandora’s box of opportunities to impose a state employee’s beliefs on others. For instance, in Texas, so long as you finalized a divorce at least 30 days ago, you can get married again — and it doesn’t matter whether the clerk issuing the license is a devout Catholic with a religious aversion to divorce and remarriage. Under Paxton’s logic, however, it could matter. Moreover, Paxton’s approach could represent a slippery slope when it comes to who exactly gets to claim a “substantial burden” on their religious freedom. Can the assistant restocking pens at the front desk decline to offer one to the couple filling out the license? Can the filing clerk who receives the license when it is returned after the ceremony just refuse to process it?

Set into motion, efforts like Paxton’s open the door to granting state employees the right to decide whether your marriage meets their religious litmus test — even if you and your potential spouse are devoutly irreligious or practitioners of another faith. The bottom line is that someone else’s religious beliefs may be used to evaluate whether you can get the paperwork you need to get married. In fact, this is already happening in North Carolina. And it will cost taxpayers untold sums of money as discrimination lawsuits are brought in response.

Even when contrary religious opinions exist, following the law in this case does not require county clerks to engage in same-sex marriages. They’re not anyone’s maid of honor or best man, and they’re not giving a wedding toast. Plus, in Christian theology — and it is overwhelmingly conservative Christians leading the outcry against the SCOTUS ruling — county clerks have nothing to do with what constitutes a wedding in the first place. Two people are married when they declare they are before God and their community. Don’t believe me? Check out Stephanie Coontz’ very revealing history of Western marriage, Marriage: A History. A county clerk is not an officiant, is not coming to your wedding, and is not, the last time I checked, God.

There are limits to how we most effectively balance honoring the religious freedom of every American while also ensuring equal protection under the law and access to public goods and services. The Supreme Court has declared that the 14th Amendment — the mother of all civil rights laws — covers same-sex couples seeking state-sanctioned marriage. Paxton may want to consider whether he really wants the distinction of being the latest in a long line of legal minds who have used religion as a weapon against civil rights.


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