Same-sex couples denied marriage licenses in Texas. Is this legal?

A gay couple in Hood County, Texas has filed a federal lawsuit against the county clerk who refused to issue them marriage licenses.

Daulton Venglar/The Daily Texan/AP
Sanaz Faith, left, and Marta Bier pose for photos with their children after receiving their marriage license at the Travis County Clerk's office, Friday, June 26, 2015, in Austin, Texas, after the Supreme Court declared that same-sex couples have a right to marry anywhere in the United States.

Joe Stapleton and Jim Cato, a Texas couple who have been together for 27 years, were overjoyed by the Obergefell v. Hodges Supreme Court decision that ruled same-sex couples could marry in all 50 states. But last week, Hood County Clerk Katie Lang refused to issue them a marriage license, ThinkProgress reports.

On Monday, the couple filed a federal lawsuit, which described their experiences as “humilliating and degrading.” Less than two hours later, Lang’s office agreed to give the couple a marriage license, which Stephen and Cato picked up within 13 hours.

But Jan Soifer, the couples’ attorney,  said they would proceed with the legal action unless Lang’s office agreed to "issue marriage licenses to all couples, gay and straight, without delay” and cover attorney’s fees.

“The religious doctrines to which I adhere compel me to personally refrain from issuing same-sex marriage licenses,” Lang wrote in a statement on the county clerk’s website.

The Supreme Court ruling has caused rifts within and across states.

Nearly one-third of Alabama counties on Monday refused to issue marriage licenses to gay couples or had shut down marriage license operations altogether, according to a telephone survey by The Associated Press (AP).

USA TODAY reported Texas Attorney General Ken Paxton and Governor Greg Abbott affirmed the rights of state workers to refuse to issue same-sex marriage licenses if they felt it conflicted with their religious beliefs.

But State Sen. Jose Rodriguez disagreed and thought Paxton “crossed the line in advising local public officials, who are not his clients, that they are not bound by the U.S. Constitution.”

Susan Watson, executive director of the American Civil Liberties Union of Alabama, said probate judges could face court sanctions if they issue marriage licenses to heterosexual couples but refuse to give them to gay couples.

In Kentucky, the ACLU filed a federal lawsuit on behalf of two homosexual and two heterosexual couples, against Rowan County Clerk Kim Davis, whose office turned all four couples away when they tried to get marriage licenses.

Clerks have argued that if they issue a license to no one, they cannot be accused of discrimination.

The AP reports local officials have warned clerks about the risk of prosecution. Warren County Attorney Ann Milliken, president of the Kentucky County Attorneys Association, said they could be charged with official misconduct, a misdemeanor punishable by up to a year in jail.

But this hasn’t been enough to sway some strong religious beliefs.

 “It’s a deep-rooted conviction; my conscience won’t allow me to [issue marriage licenses to same-sex couples],” Davis said Tuesday. “It goes against everything I hold dear, everything sacred in my life.”

One of the attorneys who filed the lawsuit, Laura Landenwich, wrote Davis “has the absolute right to believe whatever she wants about God, faith, and religion, but as a government official who swore an oath to uphold the law, she cannot pick and choose who she is going to serve, or which duties her office will perform based on her religious beliefs.”

Other states have seen similarly tense situations.

Attorney generals in Louisiana and Mississipi also attempted to delay issuing marriage licenses to same-sex couples.

South Dakota’s attorney general, Marty Jackley, said county clerks in his state who are against same-sex marriage on religious grounds can refuse to issue marriage licenses on that basis – as long as another clerk in the office will issue the license.

Jackley felt such a “commonsense solution” would balance the religious freedom of county clerks with the constitutional right of same-sex couples to marry.

Some legal authorities find the strength Supreme Court’s ruling has overwhelmed otherwise resistant entities.

“I think the real story is how well most places are complying,” Shannon Minter, legal director for the National Center for Lesbian Rights told The Seattle Times. “They are not challenging the law or the outcome, just the timing […] But there will be a handful who drag their feet.”

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