The top law enforcement official in Texas said county clerks can cite religious objections in denying marriage licenses for gay couples -- though the Lone Star State and others have for the most part started complying with Friday’s Supreme Court ruling legalizing same-sex marriage.
Despite initial resistance in several of the 14 states that did not previously allow same-sex marriage, top officials in those states by Monday said they planned to comply. Among them were officials in Mississippi and Louisiana.
Even staunch conservative critics acknowledge states will have to, in the near-term, follow the court ruling.
But Texas Attorney General Ken Paxton, a Republican, released a statement suggesting the next battle over gay marriage may be over how to balance that ruling with First Amendment religious freedoms. He predicted clerks and others could be at the center of it.
“[T]he United States Supreme Court again ignored the text and spirit of the Constitution to manufacture a right that simply does not exist,” he said in a statement released late Sunday. “… Importantly, the reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty.”
He warned that any clerk, justice of the peace or other administrator who declines to issue a license to a same-sex couple could face litigation or a fine.
But in the nonbinding legal opinion requested by Republican Lt. Gov. Dan Patrick, Paxton said "numerous lawyers" stand ready to defend, free of charge, any public official refusing to grant one. And Paxton said he would do “everything I can from this office to be a public voice” for them.
In its 5-4 opinion Friday, the Supreme Court did nothing to eliminate rights of religious liberty, Paxton's opinion states.
Carrie Severino, chief counsel and policy director for the conservative Judicial Crisis Network, agreed that the religious rights issue is the next thorny issue to resolve.
“The biggest question that was left in limbo is the next big challenge: how to balance these new-found constitutional rights and a long-standing and explicit right to exercise religion. That’ll be the next battleground,” she said.
Accepting the Supreme Court’s basic decision may be less of an issue. While several states initially slow-walked their compliance with the ruling, that resistance appears to be melting. Severino said she doesn’t expect further lawsuits challenging the ruling itself.
“If a state did attempt to challenge this decision, they would simply be struck down by the federal court that has jurisdiction over the state. It would be a beyond uphill battle. Federal courts are directly controlled by this decision,” she said.
The Supreme Court technically gave the losing side roughly three weeks to ask for reconsideration. And for the ruling to technically take effect in most states, the circuit courts will have to adopt the ruling, in turn sending an order to state agencies, which will be told to hand out the marriage licenses.
Immediately after Friday’s ruling, some states said they would wait, even as clerks in counties scattered across the country began issuing licenses.
In Mississippi, Attorney General Jim Hood initially said they would wait until the applicable circuit court lifted a stay on a prior order before issuing same-sex marriage licenses.
The Clarion-Ledger reported Monday that the same office has since sent a letter allowing circuit clerks to issue the licenses.
The letter reportedly said Friday’s ruling is now “the law of the land.”
Likewise, a parish in Louisiana reportedly has started to issue licenses after officials there resisting doing so on Friday.
Gov. Bobby Jindal, a Republican presidential candidate, told NBC’s “Meet the Press” on Sunday that they, too, were waiting for the circuit court to reverse a prior ruling.
But, he acknowledged, “We have got no choice to comply, even though I think … this decision was the wrong one.”
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