Texas GOP Still Trying to Chip Away at Gay Marriage Ruling

Proposals in the Legislature and a case taken by the Texas Supreme Court attempt to turn back some of the federal law allowing gay marriage.


An LGBT rights supporter waves a flag in front of the U.S. Supreme Court.
An LGBT rights supporter waves a flag in front of the U.S. Supreme Court.  courtesy Ted Eytan via Flickr

Eighteen months after the U.S. Supreme Court legalized same-sex marriage, Texas Republicans are still trying to chip away at the landmark decision.

Senate Bill 522, filed Thursday by state Senators Charles Perry, R-Lubbock, and Brian Birdwell, R-Granbury, would allow county clerks to opt out of issuing marriage licenses to same-sex couples if it would violate their “sincerely held religious beliefs.”

And on Friday, in response to pressure from GOP state leaders, the all-Republican Texas Supreme Court agreed to take up a lawsuit challenging same-sex benefits for Houston city workers.

Under SB 522, clerks could instead delegate the duty of issuing marriage licenses to same-sex couples to deputy clerks, judges or magistrates. County commissioners could also appoint a “certifying official” — another employee or a contractor — to issue the licenses if no deputy clerks, judges or magistrates are available.

Ken Upton, Dallas senior counsel for the LGBT civil rights group Lambda Legal, said the proposal could run afoul of the high court’s ruling in Obergefell v. Hodges depending on how it’s applied, especially in smaller counties.  

“The bottom line is the process can’t be different for same-sex couples,” Upton told the Observer. “The law can contemplate identifying a different employee within the clerk’s office to handle the application, but you can’t give gay people a list of ‘certifying officials’ and send them someplace else. That won’t work.”

Neither Birdwell nor Perry could immediately be reached for comment.

Prior to Obergefell, Perry authored a bill intended to undermine the impending ruling by punishing clerks for issuing marriage licenses to same-sex couples. Perry was also among dozens of elected officials, including Governor Greg Abbott, Lieutenant Governor Dan Patrick and Attorney General Ken Paxton, who called on the Texas Supreme Court to revisit its decision to reject the Houston same-sex benefits case.

Justices voted 8-1 in September to leave in place a lower court’s decision upholding the benefits, but reversed the decision Friday and set oral arguments for March 1.

Birdwell, meanwhile, represents Hood County — where Clerk Katie Lang refused to issue a marriage license to a same-sex couple in the wake of Obergefell, resulting in a federal lawsuit that was settled by the county for $44,000.

Last February, Irion County Clerk Molly Criner told an interim Senate committee she didn’t want to issue marriage licenses to same-sex couples and requested a religious accommodation.

Criner has compared her plight to that of clerks in Nazi Germany who were asked to collect information about Jews but refused to do so. She said at the time that no same-sex couple had applied for a license in Irion County.