Texas Senate works toward passing bill so clerks can refuse to issue same-sex marriage licenses

After a 2015 Supreme Court decision changed the legal definition of marriage to include same-sex couples, state Sen. Brian Birdwell, R-Granbury, said a de-facto religious test was created for clerks and judges.

Birdwell cited Article 1, Section 4 of the Texas Constitution as the reason behind a bill he filed that would allow clerks and judges to recuse themselves from issuing marriage licenses and performing marriage ceremonies for same-sex couples.

"No religious test shall ever be required as a qualification to any office, or public trust, in this state," the Texas Constitution reads.

If judges or clerks are required to perform ceremonies for same-sex couples against their authentic, religious beliefs, Birdwell said it is, in fact, a religious test.

"We are protecting both the conscious right of the office holder and ensuring the servicing of the couple that is asking for the license," he said.

In Birdwell's proposed legislation, if a clerk has recused him or herself, the county's commissioner court would appoint a "certifying official" to step in. That official would then forward all documents to the clerks for filing.

Birdwell said if the bill is signed into law, counties would have between the end of the legislative session and Septemeber 1 to contract with a certifying official should a necessity arise.

The bill specifies that the clerk's ability to recuse him or herself is limited. For example, Birdwell said a clerk could not recuse him or herself because of an objection to race, religion or any other protected classes under the Civil Rights Act.

Several Senate Democrats took a stand against this proposed legislation, saying that the Obergefell v. Hodges case made it clear same-sex marriages are the same as any other.

"Isn't this bill about fundamentally allowing clerks to refuse to do their job given that the Supreme Court is the highest law of the land and clerks like the rest of us is elected officials?" state Sen. Jose Rodriguez, D-El Paso, asked Birdwell.

Another piece of legislation by state Sen. Joan Huffman, R-Houston, tackles the same issue by allowing counties to exclude the name of the clerk who issued the license on the marriage certificate.

Rodriguez said he prefers Huffman's legislation as an alternative to protect individual clerks' religious preferences.

State Sen. Sylvia Garcia, D-Houston, said enough time has passed since the Supreme Court decision that clerks and judges currently in office would know about the requirement to certify same-sex marriages when taking their oaths of office.

"That's a judgment question on whether the Supreme Court is doing its job or not," Birdwell said.

Rodriguez offered an amendment that would allow a clerk choosing to recuse him or herself to have pay docked to cover the county's costs for a contract with a certifying official. The amendment was defeated 21-10.

The Senate voted 21-10, to approve the bill on its second reading. The bill must be read and approved one final time before advancing to the House.
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