Stephen B. Tyler CRIMINAL DISTRICT ATTORNEY 205 N. BRIDGE, SUITE 301 VICTORIA, TEXAS 77901-8085 Phone: (361) 575-0468 Fax: (361) 576-4139 30 June 2015 Heidi Easley Victoria County Clerk 115 N. Bridge, Rm. 103 Victoria, Texas 77901 Dear Ms. Easley, I mean this response to be direct and definitive so as to best inform any decision. In its recent 5-4 decision in Obergefell v. Hodges, the U.S. Supreme Court ruled that same-sex marriage is now equivalent to traditional “civil” marriage, and thereby involves fundamental constitutional rights. The U.S. District Court for the Western District of Texas has now enjoined the State of Texas from enforcing Texas law defining civil marriage as being between a man and a woman. The Supreme Court decision in Obergefell abolishes the previous limits on issuance of marriage license to only “[a] man and a woman,” as well as the prohibition on issuance “for the marriage of persons of the same sex.” TEX. FAM. CODE ANN. § 2.001 (West). In response to this Supreme Court ruling, you have posed the following questions: 1) 2) 3) 4) Will the state rescind my authority to issue licenses altogether? Will the Texas Attorney General’s Office defend my religious freedom rights? Is the bond I carry able to pay for any suit against me? Will I be allowed to file a countersuit where the state will defend me and pay for my court costs since according to the Texas Attorney General, same-sex marriage applicants will be infringing upon my constitutional freedoms by asking me to do something I have a right to refuse. The civil licensing of marriage is outlined in Chapter 2 of the Texas Family Code, and the issuance of marriage licenses is considered a ministerial duty. The Texas Legislature is not in session, and has not been called to an emergency session by the Governor to withdraw the authority delegated to County Clerks under Chapter 2 of the Texas Family Code. Therefore the answer to question 1 is no, you retain this duty. I understand that this can pose a number of dilemmas, particularly for the devout. Under current Texas law, refusal to issue marriage licenses when applicants for such a license have met the statutory requirements can result in a writ of mandamus seeking courtordered execution of these ministerial duties. If a court issues such an order, it may be enforced through a court’s power to hold a person in contempt. This can involve court-ordered detention or fines until the contempt issue is purged. The Texas Family Code also includes the following provision: “A county clerk or deputy county clerk who violates or fails to comply with this subchapter commits an offense. An offense Opinion Letter “Same-Sex” Ruling 2015-06-29 Page 1 of 3 under this section is a misdemeanor punishable by a fine of not less than $200 and not more than $500.” TEX. FAM. CODE ANN. § 2.012 (West). Opinions issued by the Texas Attorney General’s Office do not carry the weight of statutes or court decisions. Such opinions are essentially the legal opinion of the Texas Attorney General at a certain time on a particular matter. Notwithstanding the opinion recently released by Attorney General Paxton, Section 2.012 of the Texas Family Code applies to both County Clerks and Deputy County Clerks. The office holder in a County Clerk’s Office would be accountable for any refusal by either their office or office employees to comply with present law. Regardless of whose hands prepare or refuse to prepare a marriage license, the act or refusal is in the name and under the authority of the office holder. Attorney General Paxton has not promised to provide legal representation for County Clerks, and Victoria County cannot provide legal representation for office holders who act in “violation” of the law. The Texas Association of Counties (TAC) has indicated that your officeholder bond does not cover mandamus or contempt suits. While this addresses the mandamus issue specifically, you should expect the same lack of legal support also extend to other suits claiming deprivation of civil rights, or pursuing removal under Chap. 87 of the Local Government Code. Therefore the answer to both questions 2 & 3 is no, and you would individually bear the legal costs or risks. While the State of Texas and Victoria County make reasonable accommodations for the religious beliefs of all persons, the public cannot be required to accommodate the religious beliefs of a government office holder if those beliefs preclude the office holder from fulfilling their oath to faithfully execute the legal duties of their office. Please recall, the duty in question is the issuance of a government document in accordance with government law. Individual religious freedom is a fundamental right set forth in both the U.S. and Texas constitutions, and last week the Supreme Court ruled that same-sex couples now have a fundamental right to civil marriage. However, neither the U.S. nor Texas Constitutions regard a County Clerk holding office nor a Deputy Clerk continued employment as a fundamental right. If and when core beliefs conflict with the duties of office one has sworn to uphold, a dilemma emerges and a choice must be made. In the military there exists an honored tradition, whereby instead of refusing an order perceived immoral or imprudent, an officer makes his dissent known and resigns his commission. I empathize with your dilemma and will respect your decision. The answer to question 4 is that no colorable claim would exist, and no legal help can be expected. Attorney General Paxton’s Opinion KP-0025 does not explicitly state that the rights of County Clerks are being infringed, or that their offices can refuse to issue marriage licenses. His opinion only intimates that such a fact pattern could theoretically exist. In boiling down the legalese in this opinion, Attorney General Paxton essentially states: 1) He disagrees with the Supreme Court ruling, 2) He is not the lifeguard at this pool, and 3) The water is deep and dark, so all swimmers WILL swim at their own risk. Sincerely, _____________________________ STEPHEN B. TYLER Criminal District Attorney Victoria, Texas Opinion Letter “Same-Sex” Ruling 2015-06-29 Page 2 of 3 Cc: Ben Zeller Victoria County Judge Danny Garcia Victoria County Commissioner, Precinct 1 Gary Burns Victoria County Commissioner, Precinct 3 Kevin Janak Victoria County Commissioner, Precinct 2 Clint Ives Victoria County Commissioner, Precinct 4 Opinion Letter “Same-Sex” Ruling 2015-06-29 Page 3 of 3