How state fights against same-sex marriage may backfire

Aiden Lougee and Rex Resa kiss behind gay marriage opponents after a 2010 hearing in San Francisco on Proposition 8, California’s now-defunct gay-marriage ban. (Photo: Jeff Chiu/Associated Press)

The U.S. Supreme Court declared same-sex marriage legal in all 50 states Friday, kicking off an especially celebratory weekend of annual gay pride festivities in New York, San Francisco, Chicago and a number of other cities around the country. But by Monday, as the emotional high from the weekend wore off, a budding resistance had emerged from states unwilling to give up their gay-marriage bans without a fight.

Texas Attorney General Ken Paxton has deemed state employees exempt from granting same-sex couples with marriage licenses if it violates their religious beliefs. Conservative lawmakers in Tennessee have started drafting legislation that would protect religious leaders from being forced to preside over same-sex marriages. Utah and Mississippi are considering doing away with state-issued marriage licenses, while county clerks in Kentucky and Alabama have already taken it upon themselves to stop granting licenses altogether.

While such pushback looks poised to provoke legal action, constitutional law expert Greg Magarian, a professor of law at Washington University in St. Louis, said that most of these state efforts are “the political equivalent of temper tantrums,” attention-getting yet extremely difficult to implement.

Moves to stop issuing marriage licenses to anyone, for one thing, are highly problematic.

If a state continues to recognize religious marriages but doesn’t offer any legal opportunity for same-sex marriage, Magarian said, the state will inevitably end up handing out marriage-based benefits only to those who’ve participated in a religious ceremony, which is unconstitutional.

It would only be a matter of time, Magarian predicted, before someone who doesn’t want a religious ceremony sues the state for discriminating against their religion or lack thereof by preventing them from having a civil ceremony. “They’re going to win, and the state will be ordered to start issuing civil marriage licenses again,” he said.

Married couples receive benefits not only from the state but from the federal government as well. So even if states managed to remove themselves from the marriage business entirely, ceasing to provide benefits in addition to marriage licenses, it’s not as if the problem would just disappear. Similarly to the result of states refusing to set up health insurance exchanges in accordance with the Affordable Care Act, Magarian said, marriage would become the federal government’s responsibility.

“You can stand in the corner and hold your breath until you’re blue in the face, but people in your state will still be signing up for Obamacare, only now you’ve given the authority over it to the federal government,” Magarian said. From a political perspective, he said, daring the federal government to take over a long-held state responsibility like marriage would be “a strategically stupid move.”

In the fight against gay marriage, opponents have long cited concerns that legalization would result in Catholic priests, Evangelical pastors and other religious clerics being forced — against their beliefs — to perform marriage ceremonies for same-sex couples. Magarian dismissed this fear as well as legislation, like the one currently being drafted by a pair of Republican Tennessee state lawmakers, aimed at preventing it from becoming a reality.

“Leaving aside the fact that no gay couple is going to want someone who deeply opposes their union to consecrate it, even if it came to that, no civil authority could force a religious institution to perform a ceremony that the institution opposes,” Magarian said, explaining that such a scenario would violate the Free Exercise Clause of the Constitution — the part of the First Amendment that protects religious expression.

Less obvious is whether that same protection applies to state employees like judges, clerks and justices of the peace who issue marriage licenses as part of their jobs. According to Texas and Paxton, it does.

Following the announcement of Friday’s 5-4 decision, Texas Governor Greg Abbott sent a somewhat vague memo to state agency heads, “despite the Supreme Court’s ruling calling for the ensured protection of Texans’ religious freedom.” Over the weekend, Paxton issued a legal opinion on the Supreme Court ruling that was much more explicit. Public officials can refuse marriage licenses to same-sex couples for religious reasons, Paxton stated, and the state government will provide access to “numerous lawyers” who will defend their right to do so.

“This newly minted federal constitutional right to same-sex marriage can and should peaceably coexist with longstanding constitutional and statutory rights, including the rights to free exercise of religion and freedom of speech,” reads Paxton’s opinion.

But Magarian isn’t so sure that argument would hold up in court.

“Government employees have obligations to perform their job,” he said. “If you’re a rogue county clerk instructed to issue marriage licenses to any couple who asks for one, you should be fired for refusing to perform the duties of your job.”

In a situation like Texas, where the state government is the one going rogue, Magarian said, “Any couple who wants to have a fight will say, ‘This is state-sanctioned discrimination against me.’ The state will say they’re simply protecting the religious liberty of their employees, and the court will say you don’t get to elevate employees’ religious liberty over other constitutional requirements of their job.”

Supporters of the decision have compared its significance to the landmark 1954 ruling in Brown v. Board of Education, and Magarian noted that the current pushback by anti-gay marriage states is not unlike that sparked by the court’s mandate for desegregation. But while the time and effort involved in creating a whole new desegregated school system actually made it easier for states and cities to drag their feet in implementing the requirements following Brown, Magarian said the simplicity of legalizing same-sex marriage makes it harder to resist.

See the administration of Louisiana Governor Bobby Jindal, for example, which has acknowledged its state will have to recognize the high court’s decision and provide gay couples with marriage licenses but refuses to do so before the full 25-day period for an appeal is complete.

“You’ve got the mechanism in place. Now you just have to expand it,” Magarian said, referring to state structures for issuing marriage licenses. “You can’t be passive. You have to come out and say, ‘No, we’re not going to do this.’ And then you’re painting a target on your back.”

Magarian also suggested that there was much more personal motivation to fight desegregation than there is to protest gay marriage today.

“With schools, you had parents saying, ‘Oh, my goodness, my kid is going to have to go to school with black kids. That affects me directly,’” Magarian said. “The political will was much stronger.”

When it comes to same sex-couples getting married, however, Magarian simply stated, “It doesn’t affect you.”