A Texas couple who had been turned away by a clerk claiming a religious objection to same-sex unions finally obtained their marriage license on Monday, but only after a lawsuit. Texans Jim Cato and Joe Stapleton went to the Hood County Clerk's office to get a license following the Supreme Court's ruling in Obergefell v. Hodges, but clerk Katie Lang turned them away, citing her faith and confusion over paperwork.
After repeated attempts to get the license were denied, the couple threatened legal action. “If her personal beliefs keep her from her duties as county clerk,” Cato said last week, “then she should probably step out of her job." The couple filed a federal suit on Monday, and received their license a few hours later. But they aren't dropping the complaint, according to their lawyer, "until and unless we have an agreement from Clerk Lang that her office will issue marriage licenses to all couples, gay and straight, without delay, and an agreement to pay Jim and Joe’s attorneys’ fees for being forced to file the lawsuit."
In denying the couple's marriage license, Lang pointed to a statement made by Texas Attorney General Ken Paxton: In the wake of Obergefell, he claims public officials are well within their rights to opt out of issuing licenses for same-sex couples if they had religious objections. According to Paxton, those clerks wouldn't be breaking the law by refusing the high court’s ruling that every state must grant marriage licenses to gay and lesbian couples—they would just be exercising their rights under the First Amendment and the state’s Religious Freedom Restoration Act:
In the Attorney General’s opinion my office issued in response to Lt. Governor Patrick’s request for guidance, we find that although it fabricated a new constitutional right in 2015, the Supreme Court did not diminish, overrule, or call into question the First Amendment rights to free exercise of religion that formed the first freedom in the Bill of Rights in 1791. This newly invented federal constitutional right to same-sex marriage should peaceably coexist alongside longstanding constitutional and statutory rights, including the rights to free exercise of religion and speech.
But as we’re seeing in Texas and elsewhere in the country, coexistence hasn’t come easy: In Louisiana, Gov. Bobby Jindal, also a newly declared candidate in the Republican primary, held out on recognizing same-sex unions until three courts forced him to back down; in North Carolina, legislators codified religious refusal for public officials into law; clerks in Florida and Kentucky are also refusing to issue licenses; in Mississippi, some clerks resigned in protest rather than issue licenses to gay and lesbian couples.
This isn’t new territory. The United States has a long history of cases in which public officials—from justices of the peace to cops—have pushed back against their legal obligations in the name of religious freedom. While they aren’t a crystal ball, these cases do offer some perspective on where we are now—a moment when it seems like religious exemption claims and equal access under the law are on a collision course—and where we might be going.
Katherine Franke, a professor at Columbia Law School, told Fusion that public officials’ responsibility to serve the public equally has been repeatedly affirmed by the courts, a precedent that Paxton and others will have to contend with as they attempt to broaden exemptions for clerks and others.
“There is some history of public officials—police, firefighters, people like that—saying they want to be excused from performing certain assignments because of their religious beliefs,” Franke explained. “And the courts have been consistent in saying, ‘No, that’s not a permissible exercise of religious liberty because it shifts the costs of your religious interests onto other third parties.’ Here, we’re talking about the cost of when public officials are saying, ‘I want someone else to do the job I’m required to do.’”
A recent legal analysis, authored by Franke and Columbia Law professor Kara Loewentheil, points to a number of cases in which courts have found that public officials can’t take an al a carte approach to their legal obligations, in part because the results could be completely chaotic.
Parrott v. District of Columbia
In this case, a court held that a police department was not legally obligated to accommodate an officer’s religious beliefs about abortion if they're assigned to a post outside an abortion clinic. According to that court, the Supreme Court “has made clear that religious beliefs do not entitle one to accommodations from ‘compliance with an otherwise valid law.’ To permit every individual to decide for himself which valid, rational laws could be ignored due to personal religious beliefs would ‘permit every citizen to become a law unto himself.’"
Endres v. Indiana State Police
A cop sued after being fired for refusing to work an assignment as a gaming commission agent at a casino; the court found that “it would be unreasonable to require the state to allow an officer to choose which crimes he would investigate and which potential victims he would protect.”
The court, in a nod to just how messy matching public officials with posts that accommodate their sincerely held beliefs could really get, asked the following question: "Does [the law] require the State Police to assign Unitarians to guard the abortion clinic, Catholics to prevent thefts from liquor stores, and Baptists to investigate claims that supermarkets mis-weigh bacon and shellfish?"
Refusal in Louisiana
In 2009, a justice of the peace in Louisiana resigned after he refused to marry an interracial couple. As Franke and Loewentheil note in their analysis, Keith Bardwell claimed, much like Ken Paxton and Bobby Jindal have suggested, that the couple should just find another official to marry them. But in this case, the state didn’t have his back. He resigned his post and lamented that the experience had taught him that he “can’t be a justice of the peace and have a conscience.” Jindal, who was also governor at the time, said Bardwell's refusal to marry the couple was "clearly wrong" and called his resignation "long overdue."
Perhaps given the legal precedent, even Paxton seemed dubious that Texas officials could serve the public on a pick-and-choose basis without running into legal trouble. “It is important to note that any clerk who wishes to defend their religious objections and who chooses not to issue licenses may well face litigation and/or a fine,” he noted in his statement. “But, numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights.”
But in addition to calling on state-level Religious Freedom Restoration Acts and their interpretations of the First Amendment, holdouts against Obergefell are also looking to Roe v. Wade for an example of how to work around a constitutional right.
"We've never accepted Roe v. Wade as the final word on abortion or the Constitution," Ryan Anderson, a senior research fellow at the Heritage Institute, said during a panel after the Supreme Court decision came down. "The same thing culturally needs to happen with this Supreme Court ruling.”
The constitution says women have a right to decide to have an abortion, but many state laws—with their patchwork of restrictions, waiting periods and red tape—make that right nearly impossible to exercise.
Similarly, gay and lesbian couples in states hostile to the decision may have a difficult time exercising their constitutional rights. They can sue, but the law often moves slowly. “Should Texas make this [statement of refusal] into a formal policy that is enacted across the state, it will be challenged in court. But those things take a while,” Franke explained.
But despite being a point of reference for opponents and supporters of Obergefell, the comparison between abortion rights and the right to marry isn’t one-to-one, and political pressure may be more effective in the latter case, she noted. “It may be that they become such an outlier that it becomes clear that what is being articulated in the name of religion is really just homophobia. That may be more the effective way of having [the state] back down.”
For now, it’s a case of wait and see. “We’ll see if the turn to religious refusal on the heels of the marriage decision is just a momentary last gasp of those who haven’t followed what seems to be a national trend,” Franke said. “I don’t know which way this will go. I’m inclined to think that marriage rights will have greater traction… call me back in two years and we can see if this case is looking more like Roe or more like Bob Jones.”
The outcome of the lawsuit filed by Texas newlyweds Jim Cato and Joe Stapleton may be among the first tests, though it's not a role they expected to take on. "Jim Cato and Joe Stapleton are delighted that they finally have been issued a marriage license and can get married in their home county," the couple's attorneys, Jan Soifer and Austin Kaplan, said in a statement. "It’s a shame that they needed to hire lawyers and file a lawsuit to make that happen."