Probate Judges and County Clerks respond to SCOTUS ruling on marriage rights

When the Supreme Court recently ruled that marriage was a fundamental right that could not be denied, I doubt the five Justice majority imagined the fall-out that would occur. Just three days after the ruling, Texas Attorney General Ken Paxton issued an opinion stating “the Court weakened itself and weakened the rule of law, but did nothing to weaken our resolve to protect religious liberty and return to democratic self-government in the face of judicial activists attempting to tell us how to live.” Adding, “County clerks and their employees retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses. The strength of any such claim depends on the particular facts of each case.”

Paxton also warned clerks that refusing to issue marriage licenses may get them sued. That is exactly what happened to a Kentucky County Clerk who is refusing to issue any marriage license. The lawsuit filed by the ACLU on behalf of 4 couples cites the policy of Rowan County Clerk Kim Davis to not issue any marriage licenses. The lawsuit states “Davis declared that the policy was adopted because of ‘deep religious convictions’ which would not ‘allow’ her to issue same-sex marriage licenses.” However, unlike Texas, all “executive branch agencies” in Kentucky were instructed “to make operational changes that will be necessary to implement the Supreme Court decision.”

By contrast, in Alabama, one Probate Judge is citing not only deep religious belief but also state law as justification for refusing to issue any marriage licenses. Pike County Probate Judge Wes Allen says State law says Probate Judges “may” issue such licenses, and are not required to do so.

Sam Marcosson, a constitutional law professor at the Louis D. Brandeis School of Law at the University of Louisville, said officials who refuse to issue marriage licenses have two options: resign or go to jail. “If it means that you simply cannot fulfill your duties because of your religious beliefs, what is required of you is that you can no longer hold that office.” Adding that clerks or judge who refuses to issue a license to a two-person couple could be jailed for contempt.

One man in Montana however is attempting to remove the two person restriction. Nathan Collier applied for a marriage license for his polygamous relationship with his two wives. Collier says the dissenting opinion by Chief Justice John Roberts, which states that the legal argument used to justify same-sex marriage could be used by polygamist couples, inspired him to apply for his marriage license to his second wife. USA Today reports, “County clerk officials took Collier’s application and are consulting with the county’s attorney’s office.” Collier says “We don’t know if we’re going to have a wedding, a civil lawsuit or a criminal defense.”

With all of the litigation surrounding who is and who is not allowed to exercise a fundamental right, which had limited governmental involvement until approximately 160 years ago, I’m hoping it’s only a matter of time before governments are once again not involved in personal relationships. Though I’m not going to hold my breath.