The next stage in the war waged by same-sex marriage opponents is becoming clear. Forget the bluster about passing a constitutional amendment specifically banning it or impeaching the supreme court justices who voted in favor of it and replacing them with justices who will vote in the opposite way. Those things will never, ever happen and are just red meat thrown out to the rubes by politicians to get them all riled up.
No, what we are going to see is the cry of religious liberty, taking the shape of the claim that anyone can refuse to participate in any way in any action that violates their religious beliefs. The model here is the Hobby Lobby and Conestoga cases where the Supreme Court ruled that for a certain class of companies, the religious beliefs of the owners can be invoked under RFRA (Religious Freedom Restoration Act) to allow the companies to avoid complying with a provision of Obamacare that required the health insurance policies of companies to provide certain kinds of contraceptive services free to their employees.
The cases of bakers, florists, and photographers who refused to provide their services to the weddings of same-sex couples have taken the same RFRA religious exemption path. I have not checked recently but as far as I am aware, those cases have not been successful in the lower courts and have not reached the US Supreme Court, though one of them may well do so.
In the case of marriage licenses, we are seeing efforts by some state government officials who are responsible for issuing them decide that they do not have to do so, despite the Supreme Court’s ruling. This defiance has taken several forms.
In Alabama, the state chief justice Roy Moore first ordered probate judges not to issue same-sex marriage licenses for at least 25 days, though he later backtracked and said that all he meant was that they did not have to issue it for 25 days but that they could if they wanted. I suspect that he did not want to be the person held responsible for defying the Supreme Court.
Louisiana governor (and man who will never be president however hard he tries) Bobby Jindal has also said that state workers can refuse to issue licenses but they seem to be doing so anyway.
Meanwhile in Kentucky, some county clerks are refusing to issue marriage licenses to anyone at all. Those clerks are not getting support from top state officials.
Several more clerks are consulting with their county attorneys to determine whether they must obey the letter Gov. Steve Beshear sent them Friday, instructing them to comply with the Supreme Court’s decision, Jobe said. In a follow-up statement Monday, Beshear said he expects the clerks “to execute the duties of their offices as prescribed by law and to issue marriage licenses to all Kentuckians.”
It’s a Class A misdemeanor in Kentucky — first-degree official misconduct — if “a public servant … refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office.”
Attorney General Jack Conway said in a statement: “Any clerk that refuses to issue marriage licenses is opening himself or herself to potential legal liability and sanctions.”
County clerks who won’t give a marriage license to qualified applicants of any sexual orientation can expect a civil-rights lawsuit, said Bill Sharp, legal director of the Kentucky chapter of the American Civil Liberties Union.
In Texas, the state that’s always on the wrong side of history, the attorney general Ken Paxton and lieutenant governor Dan Patrick are backing acts of defiance.
Paxton was among the conservative leaders who encouraged county clerks to balk at what he called a “lawless decision by an activist court”, offering a moral defense for officials who object to same-sex marriage.
“County clerks and their employees retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses,” Paxton wrote in non-binding legal opinion issued on Sunday.
Paxton’s statement was made in response to a request by the Texas lieutenant governor, Dan Patrick, about how local officials should respond to the ruling.
In a statement on Sunday, Patrick commended Paxton for his “comprehensive opinion”.
“As I had hoped when I requested this opinion [attorney] general Paxton has affirmed that county clerks, judges and justices of the peace do in fact retain religious freedom to object,” Patrick wrote.
“No public employee, judge or justice of the peace should be forced to participate in an activity contrary to the covenants of their sincerely held religious beliefs.”
In the statement, Paxton noted that officials who refuse to issue marriage licenses are likely to be fined or face litigation. He assured those willing to “defend their religious objections” that there were “numerous lawyers” willing to defend their rights – many of whom would offer their services free of charge.
Paxton promised to be a strong voice in defense of those who refuse to issue the licenses.
Paxton is right that those who refuse to issue licenses are going to face legal trouble. A lawyer I know who deals with constitutional issues tells me what is likely to happen:
A couple denied a license would seek a writ of mandamus — basically an order that an official perform some function — in federal district court. The district court would grant the writ because the jurisdiction is violating the Constitution by failing to perform the requested function. No appeals court would stay the writ, so the jurisdiction would have to perform the function immediately. If it to refuses to comply, the district court would hold it in contempt.
The fines for contempt could quickly add up. The state may try to use RFRA but being a state official might make it harder to make that claim than being a private individual or company because of the Establishment Clause. If such a case does go all the way to the Supreme Court, I cannot see any of the five justices who ruled in favor of same-sex marriage allowing state officials room to nullify their verdict.
It is interesting to read this passage from justice Kennedy’s majority opinion, where he addressed religious objections and said that while they can speak as much as they wish against same-sex marriage, they cannot stop it.
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advo¬cate with utmost, sincere conviction that, by divine pre¬cepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and search¬ing debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex
If such a case does reach the Supreme Court, even some of the justices who opposed same-sex marriage may not take kindly to the idea of lower level officials defying a Supreme Court ruling since that would undermine their own authority. So I would expect a summary dismissal of the appeal or, on the off-chance that the four dissenting judges vote to take the case with a view to agreeing with the challenge, the five justices are unlikely to go along.
In short, this legal maneuver is likely to fizzle out as local officials get cited for contempt and face fines. Even with free legal help and assistance with paying the fines out of the deep pockets of the religious right, there is just so long that they can continue such futile acts of defiance.