El Paso County and state at odds over same-sex marriage

State Senator Jose Rodriguez has written a letter to surrounding county clerks, advising them that contrary to the non-binding legal opinion issued by the Texas Attorney, clerks must issue marriage licenses to gay couples regardless of their religious objections.

“They don’t have that option contrary to what the attorney general has said. District clerks are state officials and they have a statutory duty to issue licenses to applicants who fulfill all the requirements to get married and they don’t have any discretion. They have to follow the law,” said Rodriguez.

Attorney General Ken Paxton’s opinion, issued Sunday, states county clerks, judges and justices of the peace can refuse to issue marriage licenses or perform gay marriages if it violated their religious belief. Paxton argues it would depend on the details of each case but it would not be an ‘undue burden’ for the gay couple to seek another state official willing to marry them.

Rodriguez said the Presidio County Clerk on Friday refused to issue a marriage license to a gay couple. “They have a duty and an obligation under the supreme court decision and the united states constitution to issue marriage licenses to same sex couples and that failure to do so may subject them to – will subject them to liability because they are not carrying out their duty as required by law,” said Rodriguez, a former lawyer who served as El Paso’s County Attorney for more than a decade.

He added any citizen can file a complaint attempting to remove county clerks from office for failing to perform their duties.

County Judge Veronica Escobar said on Monday counties are at risk after Paxton’s opinion because they’d have to defend themselves in costly lawsuits if judges refused to perform gay marriages.

There is already one such lawsuit in Smith County, Texas after the County Clerk there refused a marriage license to a gay couple on Friday. Paxton vowed lawyers are ready to represent officials who refuse to officiate gay weddings.

Texas Republicans insist “the reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty,” as Paxton’s opinion states.

Rodriguez has said Paxton’s advice is irresponsible. “He’s not the lawyer for the counties. The representative, the legal representative for the counties are either county or district attorneys as provided under state law.”