While everyone (including me) was busy blasting North Carolina for its latest (unconstitutional) effort to undo marriage equality, the Texas Senate quietly passed a bill that would allow county clerks to refuse marriage licenses to same-sex couples if marriage equality violates the clerk’s “sincerely held religious belief.” Senate Bill 522 passed the Senate Tuesday on a primarily partisan vote, and now heads to the Republican-controlled House.
If the tactic sounds familiar, it should. The “religious recusal” of a state employee was made infamous in 2015 by Kentucky clerk Kim Davis, and was a central feature of the 2016 Mississippi “religious freedom” bill that’s been put on hold by a federal judge for likely violating the Constitution’s Establishment Clause. The failure of both of those cases could eventually spell doom for the Texas bill, but given the GOP control of all of the Lone Star state’s branches of government, it seems unlikely that some silly little constitutional concerns would stand in the way of seizing an opportunity to humiliate LGBT Texans. (Don’t forget, this is the state where the Attorney General considers passing a transphobic North-Carolina-style “bathroom bill” one of his key “legislative priorities,” according to the Texas Tribune.)
And make no mistake: the bill is absolutely about humiliating tax-paying, law-abiding residents who dare to ask their elected officials to perform a key function of their official capacity, and legally recognize a marriage between two people of the same sex. While several county clerks offices have already implemented procedures to allow clerks to hand off marriage license duties to another clerk if they have a religious conviction, SB 522 goes much further, the Tribune notes. The bill goes into great detail about the chain of recusal, laying out the protocol if a county clerk, their deputy clerk, and a local magistrate all profess this deeply held conviction that “man shall not lie with mankind,” to paraphrase an old book.
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Sure, the procedural details of the bill could just be considered housekeeping, but simply reading the protocol for who can issue a license if those elected to do so refuse is daunting. If a county clerk, their deputy clerks, and a judge all refuse to sign and issue a marriage license to a same-sex couple, the bill allows the clerk to appoint someone—who need not be employed by or appointed by the state, county, or locality—who can administer the oath and sign the license.
Imagine if you’re a same-sex couple living in Texas who has decided it’s time to make it legal. You and your partner, and maybe some close friends or family, trek down to the county clerk’s office with all the necessary documentation and fees in hand. But when you arrive, the clerk who is supposed to serve you says her faith won’t allow her to do so. (And she’s signed the paperwork SB 522 requires to claim such a religious exemption from the scope of her job.)
So you and your partner are left standing at the desk as the clerk wanders through the office, looking for someone who will solemnize your commitment. Maybe the clerk will find a sympathetic colleague, but maybe she won’t. Maybe you and your spouse live in a small town where the clerk’s office is staffed by a handful of individuals who all hold the same “sincere religious belief” that you and your future spouse are sinners unworthy of legal recognition.
After an untold amount of time waiting at the clerk’s office, hoping someone will see fit to issue two consenting, committed adults a marriage license, the first clerk returns and informs you they found an intern who will issue the oath. Or maybe the clerk couldn’t find anyone in the office willing to administer the oath, so they ask the other citizens gathered at the office, or step outside and ask passersby if they’d be willing to marry a pair of dirty homos. Then you wait a while longer while the decent person who agreed to do an elected official’s job is briefed on their newfound duties and sworn in to perform them.
So much for your “special day” being filled with nothing but love, joy, and hope for a bright future together.
That last scenario is admittedly extreme, but it would be entirely permissible if SB 522 becomes law. The bill also highlights the fact that Texas marital code still only identifies “a man and a woman” as the two parties who may apply for a marriage license. Even for Texas Republicans, this bill is a mean-spirited (though not at all unprecedented) attempt to circumvent the Supreme Court’s ruling on marriage equality in pursuit of accommodating a vocal minority who claim their faith trumps their neighbors’ pursuit of life, liberty, and happiness.
