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Religious Tolerance logo

The U.S. Supreme Court legalized same-sex marriage (aka gay
marriage) across the U.S. in its ruling of The Obergefell v. Hodges
case from Kentucky, Michigan, Ohio, & Tennessee.

Part 43: 2015-JUNE-26 to 30:
Confusion about -- & opposition to --
the High Court's ruling in the Deep South:
in Mississippi, & Texas.
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We use the term "gay marriage."to represent the marriage of two persons of
the same sex. We prefer "Same-sex marriage," a more inclusive term that
includes spouses with a bisexual sexual orientation, but it would make this web
site harder to find.
"LGBT" refers to lesbians, gays, bisexuals, transgender persons and transsexuals.
"LGB" refers to lesbians, gays, and bisexuals.

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This topic is continued from the previous essay

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2015-JUN-26: In Mississippi: Three days of confusion:

Very shortly after the U.S. Supreme Court issued its ruling on Fricay morning, JUN-26, a spokesperson for Mississippi Attorney General Jim Hood (D) said that the ruling by the U.S. Supreme Court was not yet effective in the state:

"The Supreme Court’s decision is not effective immediately in Mississippi. It will become effective in Mississippi, and circuit clerks will be required to issue same-sex marriage licenses, when the 5th Circuit [Court of Appeals] lifts the stay of Judge Reeves’ order. This could come quickly or may take several days. The 5th Circuit might also choose not to lift the stay and instead issue and order, which could take considerably longer before it becomes effective." 1

Some people in the State apparently interpreted this as indication that the A.G. was resisting the Supreme Court's order. Later that day, a spokesperson for Jim Hood released a clairification statement saying:

"The Office of the Attorney General is certainly not standing in the way of the Supreme Court's decision. We simply want to inform our citizens of the procedure that takes effect after this ruling. The Supreme Court decision is the law of the land and we do not dispute that. When the 5th Circuit lifts the stay of Judge Reeves' order, it will become effective in Mississippi and circuit clerks will be required to issue same-sex marriage licenses." 1

Finally on Monday, JUN-29, A.G. Hood released his own message to the clerks that seems to clarify matters. He explained that:

  • If clerks issue marriage licenses to qualified same-sex couples before the 5th Circuit stay is lifted, the marriages may not be fully legal.

  • If clerks refuse to issue licenses, then they may be sued by the applicants and, if found guilty, have to pay a fines.

It seems that another complicating factor was not considered. That is that the defendants in the Obergefell case have a three week interval to ask the U.S. Supreme Court to review their ruling and perhaps reverse it.

A.G. Hood's statement on Monday said:

Dear Circuit Clerks,

"The statement my assistants sent to you on Friday morning regarding the decision in Obergefell v. Hodges seems to have been misinterpreted as prohibiting Circuit Clerks from issuing marriage licenses to same sex couples. The statement was merely meant to explain that an order of the Fifth Circuit would be necessary to lift the stay.

"The Fifth Circuit stay order did not stay the Mississippi district judge's order until the Supreme Court decided the issue, but until the Fifth Circuit made a decision ... Similarly, had Mississippi not been sued, by operation of law there would be no more action required by a court. The Supreme Court only addressed the Sixth Circuit cases and did not consolidate or rule on the cases pending before the Fifth Circuit. Consequently, the Supreme Court did not reverse or address the cases pending before the Fifth Circuit. Since the stay by the Fifth Circuit is still in effect, Mississippi's case remains in the bosom of the Fifth Circuit to interpret the ruling of the Supreme Court.

"Nevertheless, regardless of the status of the case before the Fifth Circuit, Obergefell is the law of the land. If a clerk has issued or decides to issue a marriage license to a same sex couple, there will be no adverse action taken by the Attorney General against that circuit clerk on behalf of the State. In such cases, it might be wise to advise same sex applicants that the validity of a marriage licenses issued prior to the stay being legally lifted might be contested in any potential divorce action or in future estate proceedings. On the other hand, a clerk who refuses to issue a marriage license to a same sex couple could be sued by the denied couple and may face liability. Whatever course you decide to take, you should consult with the county board attorney about the issuance of licenses in light of the Supreme Court's opinion on Friday." 2

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2015-JUN-27: Resistance in Texas:

Texas State Senator Jose Rodriguez (D) objected to the Attorney General's statement, to county clerks. He said:

"The Attorney General has crossed the line in advising local public officials, who are not his clients, that they are not bound by the U.S. Constitution. He has erred grievously in giving them unsolicited advice that may subject them to liability in both their individual and official capacity, and could result in their removal from office for failure to uphold the law." 1

Austin lawyer, Jody Scheske, referring to the Attorney General's remarks, said:

"We settled the idea that public officials can pick which citizens to serve or not in the ’50s and ’60s civil rights litigation. They cannot." 3

Neel Lane, a Texas attorney. said that A.G. Paxton’s opinion was:

"... a red herring that is intended to whip up the base but ... is legally deficient." 3

The Texas Freedom Network, a pro-civil rights groups, issued a statement saying:

"This reckless and irresponsible attorney general has effectively declared war on the Constitution’s guarantee of equality under the law for all. 3

A spokesperson for the Texas American Civil Liberties Union stated that religious freedom was a constitutionally protected right but that it:

"... doesn’t mean that government officials can use their personal religious beliefs to avoid following the law regarding marriage." 3

Webmaster's comment:

The Texas ACLU appears to be in error. If they wish, clerks and other government officials can -- because of their religious beliefs -- certainly ignore the High Court's statement that legalized gay marriage across the United States. However, if they they chose to refuse a marriage license to qualified same-sex couples, they would probably be exposed to a lawsuit with severe financial impact on their finances. That could personally cost them tens of thousands of dollars.

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2015-JUN-30: Some counties in Texas are issuing marriage licenses:

The Dallas Morning News staff prepared a map showing the counties of Texas and their license status. As of 2015-JUN-30, they indicated that qualified same-sex couples could obtain marriage licenses in 22 counties, and are being refused in 10 counties. Most of the remaining 222 counties are waiting either for a clear order from the state government or waiting for new marriage forms that do not specify bride and groom. It should not be an insurmountable task for same-sex couples to find a cooperative clerk if they are willing to drive long distances to find a courthouse that is following the federal Constitution. It is likely that this task will become easier with the passage of time as licenses become available to them in more counties. 4

Alternately, same-sex couples in Texas could go to an adjacent state, try to obtain a marriage license there, marry, return to Texas, and ask that their marriage be recognized, as the U.S. Supreme Court has ordered. Their legal rights and wishes may or may not be respected by the Government of Texas without a legal fight. 4

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This topic continues in the next essay.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.
  1. Casey Quinlan, "Even After Supreme Court Ruling, These States Are Still Resisting Same-Sex Marriage," Think Progress, 2015-JUN-27, at: http://thinkprogress.org/
  2. Paul Hampton, "Over the weekend, Jim Hood's opinion on gay marriage seems to have evolved," Sun Herald, 2015-JUN-29, at: http://www.sunherald.com/
  3. "Texas attorney general says judges can deny same-sex marriage licenses," USA Today, 2015-JUN-29, at: http://www.usatoday.com/
  4. "Interactive maps: How Texas counties are handling same-sex marriage licenses," Dallas Morning News, 2015-JUL-30, at: http://www.dallasnews.com/

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How you may have arrived here:

Copyright © 2015 by Ontario Consultants on Religious Tolerance.
First posted: 2015-JUN-30
Latest update: 2015-JUN-30
Author: - Robinson
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