The religious freedom of a County Clerk is under fire in Hood County, Texas, following last month’s Supreme Court decision in Obergefell v Hodges legalizing same-sex marriage.
Even before the Supreme Court decision, religious liberty experts identified several firewalls to keep the newly-minted right to same-sex marriage from canceling out the clear and foundational right to religious liberty. These firewalls, as articulated by First Liberty Institute President & CEO Kelly Shackelford, included:
· Language in the Obergefell decisionreaffirming the rights of religious dissenters to any redefinition of marriage. At least three important briefs asked the Court for such language—including the one filed by First Liberty Institute on behalf of a large group of well-known Christian institutions and individuals such as the Billy Graham Evangelistic Association. Thankfully, the opinion did include a reaffirmation of religious rights.
The attacks against Hood County (TX) Clerk Katie Lang is one of several early tests around the country of the first two firewalls, and therefore is an important case.
RIGHTS COLLIDE AFTER MARRIAGE IS REDEFINED
Katie Lang, an elected County Clerk in Hood County, Texas, is a strong Christian who holds a sincere religious belief that marriage is the union of one man and one woman. After the Supreme Court’s decision redefining marriage, Ms. Lang knew she could not personally issue a same-sex marriage license without violating her conscience. Referring to Attorney General Paxton’s statement on June 28, which affirmed the religious freedom of government employees, Ms. Lang recused herself from personally issuing same-sex marriage. She then informed the public that other Hood County Clerk staff members were ready and available to issue marriage licenses to same-sex couples.
The non-binding legal opinion by the Attorney General explicitly cited the first two “firewalls”—the language in the Obergefell decision, and the Texas RFRA.
Late Thursday afternoon on July 2 (just before the office was to close), a same-sex couple walked into the Hood County Clerk’s office and immediately demanded a marriage license. A staff member provided them with an application, but noted that the county’s marriage licenses still contained gender-specific references and explained that the gender-neutral licenses had been ordered but not yet come in. The couple requested that the County Clerk’s office issue the gender-specific licenses anyway. Though they had not been approved for issuance, Ms. Lang contacted the County Attorney to ask for guidance on whether the marriage license could still be issued with gender-specific references.
The County Clerk’s office was closed on Friday due to the July 4th holiday, but Ms. Lang communicated with the County Attorney over the holiday weekend. As soon as the attorney gave authorization to issue the pre-existing license, Ms. Lang’s office issued it, having the marriage license ready even before the office opened on Monday morning, July 6.
RELIGIOUS LIBERTY OPPONENTS WASTE NO TIME TESTING THE FIREWALLS
Inexplicably, the same-sex couple filed a lawsuit against the Hood County, even though they knew that the clerk’s office was working to issue the license as soon as possible, and did so less than one business hour after it was requested.
The lawsuit seems to fly in the face of the two firewalls upon which the County relied, as stated in Attorney General Paxton’s legal opinion: the Supreme Court opinion and Texas religious freedom laws.
What did the Court opinion say? While the June Supreme Court decision mandated that all states issue and recognize same-sex marriage, the majority opinion reaffirmed religious liberty protections for those citizens whose deeply held religious views cause them to disagree. Justice Anthony Kennedy writes:
“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, 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.”
All nine Supreme Court Justices agreed with Kennedy.
And one day after the decision, Attorney General Paxton cited the opinion and the Texas RFRA, concluding:
“County clerks and their employees retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses…It is important to note that any clerk who wishes to defend their religious objections and who chooses not to issue licenses may well face litigation and/or a fine. But, numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights.”
While Lang invoked these very rights when she declared that she personally would not be issuing same-sex marriage licenses, the same-sex couple that is suing is choosing to ignore them. Even so, there is little reason to fear. The attack against the County is based on a misuse of Kennedy’s opinion. The County’s defense is based on law.
First Liberty Institute: “HOOD COUNTY FOLLOWED THE LAW”
Undeterred by malicious, uninformed attacks against religious liberty, First Liberty Institute is standing up for Lang’s legal right to recuse herself based on her sincerely held religious beliefs.
As evidenced by Kennedy’s and Paxton’s statements, denigration such as this against Lang were anticipated; the firewalls were cited by Shackelford and other religious liberty experts for this very reason, and that reason wasted no time in showing up. These cases should not catch supporters of religious freedom off-guard, but it is crucial to remain confident and courageous in defending religious individuals’ right to live out their beliefs.
“The Supreme Court’s decision did not overturn the First Amendment,” said Shackelford. “Ms. Lang has a constitutional right to live and act according to her beliefs. She followed the law by ensuring her office complied with the Supreme Court’s decision, allowing the couple to receive a marriage license while her conscience rights are protected.”
STRENGTHEN YOUR RESOLVE
Lawsuits like the one against Hood County are springing up all across the nation as opponents of religious liberty misuse Kennedy’s opinion and test the freedoms guaranteed in the First Amendment. There are several things you can do to protect yourself against possible attacks:
“In the post-Obergefell world, it is vital that we protect the rights of all Americans,” Shackelford says, “including government employees’ rights to religious liberty.”
The ultimate firewall is the willingness of free people to stand up for their freedom.
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About First Liberty Institute
First Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit www.FirstLiberty.org.