Texas GOP Legislation Targets LGBTQ Marriage Licenses

LGBTQ marriage equality in Texas

Legislation making its way through the Texas legislature would offer a legal “religious” loophole for taxpayer-funded public officials to refuse same-sex couples seeking to obtain a marriage license. Senate Bill 522 – written by state Senator Brian Birdwell (R-Granbury) – would allow any Texas county clerk to refuse to dispense a marriage license so long as that refusal is based on “a sincerely held religious belief that conflicts with the clerk ’s ability to fulfill the clerk ’s duties…”

The legislation lays out how those refused services can legally obtain a marriage license including appointing “certifying officials” but notes that in the event that every person in a county refuses, the couple will be given the information of an official in another county they must contact electronically or by fax.

Reporting on the bill, the Houston Chronicle noted:

Several Democrats questioned whether the law was necessary — or could perhaps trigger new discrimination. They questioned whether the change could make it more difficult for same-sex couples to get licenses in some counties.

“I’m afraid we’re opening up a box of unintended consequences,” said Sen. Jose Menendez, D-San Antonio.

The issuance of same-sex marriage licenses became a hot-button issue two years ago for the conservative Republicans who control the Texas Legislature, after a Kentucky clerk was jailed for refusing to issue a license because it was against her religious beliefs.

Since the U.S. Supreme Court legalized same-sex marriage in 2015, many county clerks in Texas have adopted procedures in which clerks who object to same-sex licenses can hand off that duty to other employees.

While courts since have made clear that Texas clerks cannot refuse marriage licenses to same-sex couples, Republican primary voters who oppose gay marriage have supported changes in state law to protect the religious beliefs of local officials — and to keep pastors and businesses from being penalized if they disagree with same-sex marriages.

Since the Texas legislature only meets every two years, this is the first opportunity Texas Republicans have had to begin chipping away at the fundamental freedoms Obergefell v Hodges confirmed LGBTQ people are legally entitled to by the Constitution.

Commenting on his legislation, Senator Birdwell argued, “This provides a way for clerks to exercise their profoundly held religious beliefs under the First Amendment, and at the same time protect the rights of couples who are coming in for a marriage license.” He added, “Right now, there is not an alternate mechanism for a clerk who is not willing to issue a license because of their sincerely held beliefs.”

That statement actually runs counter to how the Texas state government has operated over the last two years. Since the Obergefell decision, county clerks across Texas – even in the deepest, most conservative areas of the state – have found ways to accommodate same-sex couples. This legislation ignores the procedures those clerks have put into place and mandates new hurdles same-sex couples must jump through to enjoy the same rights as their opposite-sex counterparts.

Texas Freedom Network president Kathy Miller touched on this in a statement condemning the SB 522:

The Texas Senate today said it has no problem with public officials picking and choosing which taxpayers they will serve. This bill opens the door to taxpayer-funded discrimination against virtually anyone who doesn’t meet a public official’s personal moral standards.

According to reporting by the AP, Democratic state senators oppose SB 522 nearly unanimously for the same reasons as well as pointing out the system isn’t actually broken and doesn’t need fixing:

Sen. Sylvia Garcia, a Houston Democrat and former judge, said Tuesday that the law was unnecessary since Texas officials have been issuing marriage licenses for nearly two years without objection. She said the bill will let many Republican officials now stop doing so, not because they have legitimate, religious-based problems with gay marriage but because they want to take ideological stands that will impress local primary voters.

“All the clerks and judges know about the law and are following the law,” said Garcia, who also asked if the constitutional duties elected officials swear to uphold shouldn’t extend to enforcing Supreme Court decisions. Birdwell cut her off, saying the state Senate shouldn’t engage in a “constitutional debate.” He added that “lawmaking belongs to the legislative branch,” not the courts.

The Texas Senate voted 21-10 along party lines (with one defecting Democrat) yesterday in a preliminary vote and are expected to pass SB 522 today and send it to the House. Should it pass and be signed into law, it will almost certainly be constitutionally challenged for placing hurdles between same-sex couples and their fundamental right to marry that opposite-sex couples do not have to deal with.

Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he’s worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.

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