Texas Is Creating A Gay Marriage Loophole — And Here's Why That's Really Dangerous For Civil Rights

In the wake of last week's Supreme Court decision upholding the right of same-sex couples to marry across the United States, Texas Attorney General Ken Paxton announced that Texas county clerks and judges could refuse to perform same sex marriages on the grounds of religious objections on Sunday. At this time, no clerk has refused a marriage license, but Paxton's announcement conflicts with a basic tenet of the law: Public officials like judges and county clerks are obligated to do their jobs regardless of religious or personal objections.

Luckily, Texas State Sen. Rodney Ellis is on the offensive to protect his constituents, though. In recognition of the Supreme Court's historic and decisive ruling on the issue, Ellis is gravely concerned about Paxton's statement. It's the next chapter in what may become quite a saga in the Lone Star State, because denying marriage licenses isn't just about refusing to allow couples to publicly celebrate their love.

Should clerks and judges start a tide of refusals, it could deprive gay, lesbian, bisexual, and some transgender couples of the right to marry in their home counties — and they'll lose the benefits that come with marriage, including custody rights, the authority to make end of life decisions, and the ability to be on their partners' health insurance policies — a particularly pressing issue in a state without an insurance exchange. It might also result in yet another court battle over marriage rights, dragging the issue out even further and costing tens of thousands in litigation on all sides.

State Sen. Ellis, who represents the 13th District, asked U.S. Attorney General Loretta Lynch to monitor the situation in Texas for signs of civil rights violations.

What's particularly interesting about the letter isn't just the request for help, though: it's his discussion of the dangerous slippery slope involved in allowing judges and clerks to refuse to perform their duties on the grounds of religious objections.

I have serious concerns about the far-reaching implications of this blanket protection for officials who may choose to ignore the law based on their own personal religious beliefs. Will judges be able to argue that they should not have to recognize or authorize divorces if it offends their religious sensibilities? Could a judge refuse to sentence a defendant to the death penalty under his or her religious belief that "thou shalt not kill" means just that? Where does this end?

Tantrums in response to Supreme Court rulings are nothing new — see the brewing discontent over ACA for an example — but this one is particularly egregious. Paxton claims that county clerks shouldn't be required to issue marriage licenses to same sex couples if doing so would "violate their religious beliefs," which is a popular conservative argument for any number of things that conservatives don't like. (Pharmacists shouldn't have to hand out birth control, nurses shouldn't have to assist with abortions, etc.)

It's not the job of clerks, judges, and other public employees to make morality-based decisions about the people they interact with. It's their job to interpret the law fairly, in the case of judges, and to perform the task of issuing, witnessing, and recording legal documents, in the case of clerks. That's it.

The fact is that you can refuse to bake a cake for a gay couple — depending on the location of your business — if you want to miss out on the highly profitable gay wedding business. But you can't refuse to do your job if you're a state employee and someone needs you to do something that is entirely within the law. The Supreme Court ruled that states are required to give all residents the freedom to marry, which means that all Texas county clerks, yes, every last one, are required to issue marriage licenses to any couple that applies for one.

Even Paxton admitted this in his comments, noting that people "could face litigation" for not doing their jobs, but assuring those morally upright Texans that a fleet of lawyers stood ready to swing into action to defend freedom and the American Way.

The senator's points should be taken seriously, because the right is always complaining about "activist judges," and yet here it is, promoting judicial activism. The place for activism is not the bench, though there is an important place for promoting a shifting interpretation of the law in light of a new understanding of the Constitution and legal precedent. I say this even as an ardent opponent of the death penalty — and one bitterly disappointed by the Supreme Court's decision to uphold the use of a cruel drug in state-sponsored murder — there are lots of paths to abolition and going against mandated law isn't the way to do it, though challenging that law with cases like Glossip vs. Gross is another matter.

Moreover, the Right is also fond of screaming about the "Islamization" of America and the perils of permitting any religion other than a conservatively-interpreted Christianity to have a role in American society. In fact, the right has specifically raised the specter of Sharia on the bench, and multiple states including Oklahoma, Alabama, and — illustrative of hypocrisy — Texas have attempted to pass anti-Sharia legislation and ballot propositions. So religious objections on the grounds of conservative Christianity are okay, but not religious objections on the ground of Islam — or, likely, Judaism, Hinduism, Buddhism, and any one of the myriad of religions practiced around the world. Were a clerk to refuse to issue a business license to a pig farm on the grounds that pigs are unclean, the right would have a conniption, and they'd be right.

It's not the job of clerks, judges, and other public employees to make morality-based decisions about the people they interact with. It's their job to interpret the law fairly, in the case of judges, and to perform the task of issuing, witnessing, and recording legal documents, in the case of clerks. That's it.

One county clerk who is religiously opposed to same sex marriage explained why she'll be doing her job, in a statement that will hopefully send a message to anyone considering religious refusal:

Personally, same-sex marriage is in contradiction to my faith and belief that marriage is between one man and one woman. However, first and foremost, I took an oath on my family Bible to uphold the law and as an elected public official my personal belief cannot prevent me from issuing the licenses as required.

Sometimes that means public employees are obliged to do terrible things, like sentencing people to death, and sometimes that means they're obligated to do things they might think are terrible, like granting marriage licenses to two people in love. If they have a problem with this, they should probably pick different careers.

Images: Getty Images (1), ALES/Flickr