If the U.S. Supreme Court rules in favor of same-sex marriage later this month, Austin and San Antonio may be the only places in Texas where gay couples can obtain licenses initially.
Representatives from the Bexar and Travis county clerks’ offices say they’re prepared to physically modify marriage license application forms, which are generated by the state Vital Statistics Unit and currently say “male” and “female.” However, clerks in Dallas and El Paso counties—both Democrats—said they’d be reluctant to do so. Clerks in Harris and Tarrant counties, both Republicans, didn’t return calls seeking comment.
El Paso County Clerk Delia Briones said she reached out to the Vital Statistics Unit about the forms in February, but was told to wait until after the court rules.
“What am I going to do, ask the person who’s the man and who’s the woman? I can’t do that,” Briones said. “You want to be proactive and be prepared, but they’re stalling it at the state level, so my hands are tied.”
Chris Van Deusen, a spokeswoman for the Texas Department of State Health Services, which includes the Vital Statistics Unit, said that after the Supreme Court rules, officials will consult with the attorney general’s office to determine what changes are needed.
“Until the court rules, [we] won’t be able to know the impact on current operations or forms,” Van Deusen said.
Republican Attorney General Ken Paxton, a staunch opponent of same-sex marriage, didn’t respond to a request for comment.
Dallas County Clerk John Warren suggested his office won’t issue licenses to same-sex couples until the forms are modified by the Vital Statistics Unit.
“I don’t think Travis and Bexar may have thought it through completely because the marriage license application is a state form that is provided to the county clerks as the ‘local registrar,'” Warren said. “I can assume those two counties will manually strike through the language on the application. … The problem I have with this is that it makes the action of the clerk deliberate with the strike-out. That shows a direct intent to ignore the law.”
Travis County Clerk Dana DeBeauvoir announced this week she will offer extended evening and weekend hours to accommodate same-sex couples, including those from other counties, and begin issuing licenses after reviewing the high court’s ruling with the county attorney’s office.
“I’m going to do my very best to be done with this bigotry, but we’ve got to step carefully,” DeBeauvoir told the Observer recently.
Thomas Koenig, chief deputy clerk for Bexar County, said his office would also likely modify the marriage license application forms. Clerk Gerard C. “Gerry” Rickhoff, a Republican, announced last year that he would consider staying open round-the-clock to accommodate gay couples when same-sex marriage becomes legal.
Ken Upton Jr., Dallas-based senior counsel for the LGBT civil rights group Lambda Legal, said if the Supreme Court rules in favor of same-sex marriage, gay couples could sue the Vital Statistics Unit and quickly get a federal judge to order officials to immediately change the application forms.
“I think there will be some places where this is a problem, but it isn’t going to be a problem for very long,” Upton said. “I think a clerk that hides behind Vital Statistics, when the law clearly states you have to let them get married, risks personal liability.”
Upton said it would also be illegal for clerks to stop issuing licenses to all couples, because they’d be interfering with the fundamental right to marry under the U.S. Constitution. If clerks or state officials refused to comply with a federal judge’s order, they could face punitive damages into the millions of dollars, he said.
“If the Supreme Court rules in our favor, I think there will be relatively little resistance in most places,” Upton said. “Where there are people resisting and throwing up obstacles, I think it will be a fireworks show worth watching, because the truth is they are going to get their heads handed to them.”