Following the historic Supreme Court marriage equality ruling last month, clerks and judges throughout the U.S. (but primarily in the South) have been making headlines by "going rogue." Yes, these public officials have been refusing to issue marriage licenses to same-sex couples in violation of the law.
In Texas, the Attorney General, Ken Paxton, even issued a statement that essentially gave county clerks permission to refuse to issue marriage licenses to same-sex couples.
"It is important to know any clerk who wishes to defend their religious objections and who chooses not to issue licenses may well face litigation and/or a fine," he said, "but numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights."
Texas State Senator Jose Rodriguez strongly disagreed with Paxton, saying, "The Attorney General has crossed the line in advising local public officials, who are not his clients, that they are not bound by the U.S. Constitution. He has erred grievously in giving them unsolicited advice that may subject them to liability in both their individual and official capacity, and could result in their removal from office for failure to uphold the law."
A 'Humiliating and Degrading' Experience
One Texas couple sued a clerk who refused to issue them a marriage license, describing the experience as "humiliating and degrading" in their federal lawsuit. Less than two hours after the suit was filed, the clerk issued them a marriage license. Their lawyer explained, though, that they wouldn't drop the suit.
"The lawsuit will not be dismissed until and unless we have an agreement from Clerk Lang that her office will issue marriage licenses to all couples, gay and straight, without delay, and an agreement to pay Jim and Joe’s attorneys’ fees for being forced to file the lawsuit,” the attorney said.
And while the marriage equality fight continues in Texas, the Lone Star state is definitely not alone. Bobby Jindal has encouraged clerks to go rogue in Louisiana as Paxton has. And in Kentucky, Alabama and Michigan some judges are violating the ruling by refusing to issue any marriage licenses at all -- gay or straight. Lawsuits like the one in Texas have also been filed by couples in Kentucky.
But A Few Bad Apples Won't Spoil The (Same-Sex) Wedding Punch
Despite all of these setbacks, same-sex weddings have now been celebrated in all 50 states. Sarah Warbelow, Legal Director of the Human Rights Campaign, told US News, “I actually think one of the takeaways that people aren’t really pushing out there is, despite these handful of bad actors, this has really proceeded very smoothly. The vast majority of clerks and government officials are doing their job [and] nobody is having to bring in the National Guard to enforce people’s rights.”
While the notion that one person's religious freedom might allow them to restrict the rights of others may seem new, not to mention upsetting, it's actually far from it. We've definitely been here before.
'Loving' Interracially Used To Be Illegal Too
In 1958, Mildred Jeter, a black 17-year-old, and her childhood sweetheart, 23-year-old Richard Loving, in Washington D.C., because interracial marriage was still illegal in their home state of Virginia. When Mildred and Richard, who was white, returned home, they were jailed and sentenced to a year in prison for "unlawful cohabitation."
The judge in the case, Leon M. Bazile, made it clear that he was acting on religious grounds, arguing, "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. ... The fact that he separated the races shows that he did not intend for the races to mix."
The judge offered to waive the couples' sentence if they agreed to leave the state for the next 25 years. The Lovings left Virginia but were arrested for traveling together when they returned to visit years later. They wrote to the ACLU, who represented them in a 1967 case aptly named Loving v. Virginia, which resulted in a Supreme Court ruling establishing that bans on interracial marriages -- which were still in place in 16 states -- were unconstitutional. (States had been individually overturning their own bans for years, following a very similar trajectory to the one we saw with gay marriage.)
Despite the fact that they were unenforceable after that, many states kept their interracial marriage bans on the books. South Carolina didn't get rid of theirs until 1998, and Alabama was the last state to overturn theirs in 2000, with 40% of the state still voting to keep it on the books.
Mildred Loving died in 2008, but in 2007, on the 40th anniversary of Loving v Virginia, she issued a powerful statement about marriage equality that still resonates today.
"I am still not a political person," she said in part, "but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving [v Virginia], and loving [each other], are all about."