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Monday, June 29, 2015

Texas responds to Obergefell

Texas Attorney General Ken Paxton has issued a non-binding opinion letter about implementation of Obergefell. Paxton concludes that 1) county clerks and their employees retain religious freedoms that may allow them to opt-out of issuing licenses to same-sex couples, but it will be fact-dependent and 2) State judges and county justices of the peace may similarly seek an opt-out, depending on the facts. The county clerk in Bell County followed the letter to announce that her office would issue licenses to same-sex couples, with individual employees able to seek an opt-out. Josh Blackman has detailed thoughts; Josh argues that this becomes a matter of staffing, rising to a constitutional problem only if no one in the office is willing to issue licenses to same-sex couples or if there are excessive delays or administrative difficulties.

I believe Josh basically has it right, although I would offer a few caveats.

First, as Josh notes and as I argued in a listserv discussion, dignitary harms caused by discriminatory delays or by being sent to a special line or a different clerk (to say nothing of the extreme case in which the clerk gives a lecture against same-sex marriage before moving the couple to a different line), may be challenged in an action for damages, even if the couple gets the license. The claim probably is worth only $ 1 in nominal damages, but it could proceed and could produce a judgment against the clerk and/or the office. There is a qualified immunity question that goes to the scope of Obergefell--does it mean there is a right of same-sex couples to obtain licenses and to marry in all respects on the same terms (vis a vis the State) as opposite-sex couples. A supervisory or municipal liability claim also is likely if the delays and dignitary harms were caused by employees carrying out formal policies.

Second (and this may be because my religious beliefs do not cause me to oppose same-sex marriage), even recognizing the administrative need, this makes me uneasy because it smacks bit of separate-but-equal. It relies on separate lines and separate clerks. Only it now is being presented as the least restrictive means for the government to satisfy its compelling interest in issuing marriage licenses to qualifying couples. I suppose if it is done respectfully (and a listserv comment indicated this has been working well in Utah), there is not a problem. But if we all can agree that a clerk's office could not have a special line for mixed-race or interfaith couples (assuming we can), why are same-sex couples and same-sex marriages different? Alternatively, could that concern be resolved by broadening the opt-out to extend not only to opposition to same-sex marriage, but also to other religious objections to other licenses?

Third, what happens if there is only one clerk in the office who will issue these licenses? Can he never break for lunch? Must the office, at least for marriage licenses, shut down for that hour? I do not imagine the office could say "No licenses to same-sex couples from noon-1 p.m."

Posted by Howard Wasserman on June 29, 2015 at 02:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Barry, I believe you are referencing someone who was arrested for not leaving some marriage office. It was an act of protest. She wasn't arrested for merely trying to marry two people.

Posted by: Joe | Jun 30, 2015 12:01:15 PM

I would like to flag an issue that I have not seen discussed yet. That is, a judge who decides for religious reasons (or otherwise) not to marry same-sex couples may not run afoul of state law or Obergefell, etc., but may run into problems under the Canons of Judicial Ethics. Most Canons require, in various formulations, judges to avoid actions that would evidence or appear to evidence bias, prejudice or impartiality. A judge who would conduct opposite-sex, but not same-sex, weddings arguably runs into that issue. To the extent that clerks or other persons have similar restrictions, there are similar issues.

Posted by: Todd Brower | Jun 30, 2015 3:04:33 AM

It'd be one thing if states waited for their staff to formally ask for reasonable accommodations under some sort of state religious freedom in employment law, and quite another to reach out and preemptively created a unique process for opting out of state employment duties for one particular religious objection. That surely smacks of intentional prejudice, if not proves it.

Posted by: brad | Jun 29, 2015 5:52:06 PM

Good thoughts, Howard. I think the way to handle the the separate-but-equal problem is to make sure that the clerk who issues same sex licenses ALSO regularly issues opposite sex licenses. Don't just have a "same-sex clerk" that is called up from the basement every time a same sex couple walks in. Keep that clerk on regular duty in the clerk's office--even if at another window (or whatever the set up)--so that he/she will be serving opposite sex couples as well. In this circumstance, even though there are separate lines, the identity of the couples in line at the same-sex window will not all be same sex couples. Thus, the stigma should not attach at that point.

Your hypothetical about "no same sex marriages from noon to 1pm" is intriguing. I have no law to cite for this, but it would seem that some amount of de minimis inequality is inactionable. I'm not talking about a violation with nominal damages here, I'm talking about no violation, period. Granted, a de minimis inequality to one is a micro-agression to another. (And, for the record, I would hope that any county would work hard to avoid a gap in service.) But to push your example to its natural limit, what if a county said, "no same sex licenses from 12:00pm to 12:10pm." What exactly is the constitutional harm suffered? I guess the the harm is dignitary--being treated differently is a stamp of "otherness" that ought not be used unless the government has a compelling interest. But what if the government has a compelling interest AS TO TIME, but not as to the ultimate issuance of the license? How should the constitutional question be framed?

It would seem that intent also matters a lot here. Whether the claim is one for equal protection (Washington v. Davis) or due process (Daniels v. Williams), a rule refusing same sex licenses between 12pm and 1pm will only be unconstitutional if the county desires to harm the rights of same sex couples. Importantly, mere knowledge of a discriminatory impact is not enough. Obviously, turning a blind eye to discriminatory impact might give us reason to "sniff out" intentional prejudice, but lots of counties with small populations and budgets may not have the flexibility to make a quick change. Moreover, counties may (at this point, at least) reasonably believe that a delay of 1 hour, 1 day or even 1 week is not unconstitutional and thus feel no obligation (legally, at least) to aggressively address the staffing problem.

Posted by: Jack Preis | Jun 29, 2015 5:15:45 PM

Joe: "In practice, people have a range of beliefs about marriage (and other issues government clerks handle..."

But right-wing religious beliefs will get special deference.

for example, in Alabama (?) recently, a priest was arrested when she attemped to perform a wedding for two people. I haven't heard a peep from the right-wing 'religious freedom' groups, and won't hold my breath.

Posted by: Barry | Jun 29, 2015 5:02:49 PM

In practice, people have a range of beliefs about marriage (and other issues government clerks handle), but same sex marriage beliefs will get special concern. A consistent approach to this principle would make licenses rather complicated. But, I do not see consistency being provided.

A government clerk religious opposed to divorced people getting remarried should have a claim here, right? Or, who think women shouldn't drive in public unveiled etc. Overall, license distribution should be seen as a neutral act, the actual ceremony done elsewhere.

If not, again, it will be very complicated. I appreciate the discussion of the issue that highlights this above.

Posted by: Joe | Jun 29, 2015 3:24:16 PM

Thanks Howard. I agree with each of your caveats.

Posted by: Josh Blackman | Jun 29, 2015 2:38:21 PM

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