Out in Texas: Where public is private and private is public

The news this morning out of Texas:

On Sunday, Texas Attorney General Ken Paxton issued a formal opinion declaring that county clerks throughout the state may refuse marriage licenses to same-sex couples. Clerks need only state that serving a gay couple would violate their “sincerely held religious beliefs,” Paxton explained, and they are exempt….

Paxton believes that Texas’ Religious Freedom Restoration Act gives clerks the right to turn away gays, because serving them would substantially burden their religion….

At least one Texas county clerk has already turned away gay couples. More are likely to follow suit in the deep red state. The Texas legislature may consider passing a North Carolina-style law that permits clerks to opt out of performing marriages or issuing licenses.

But the North Carolina law forbids clerks from performing any marriage, gay or straight, once they’ve opted out. Under Paxton’s interpretation of his state’s RFRA, Texas clerks are encouraged to marry straight couples while turning away gay couples. That’s the kind of blatant discrimination that gay rights advocates sought to avoid by pushing a non-discrimination amendment to Indiana’s RFRA. Texas’ law has no such protections for LGBTQ people, so clerks can openly refuse service to gays simply because they are gay. That’s religious liberty in action.

It’s interesting. At the dawn of modernity, John Locke, one of the chief theoreticians of our notions of religious liberty, toleration, and separating the power of the state from that of the church, had to consider such a scenario. In his Letter Concerning Toleration, he asked:

What if the Magistrate should enjoyn any thing by his Authority that appears unlawful to the Conscience of a private Person?

There’s just one difference in the Texas case: this time, the private person in question is the magistrate.



  1. John June 29, 2015 at 2:15 pm | #

    As a cynical legal beast, I would advise marriage minded gay couples to flock to Texas, apply before the non-Lockean Magistrate for a marriage license, be refused based upon sincerely held religious nonsense, and file a lawsuit alleging that their civil rights have been violated. Should settle for enough to pay for the honeymoon.

  2. Benjamin David Steele June 29, 2015 at 2:51 pm | #

    What if a Texas county clerk refused marriage licenses to heterosexual couples?

    • John June 29, 2015 at 2:59 pm | #

      What if the clerk refused marriage licenses to members of the same species? Reducio ad absurdum is the norm in Texas but that is an easy target.

  3. Arthur Reber June 29, 2015 at 5:16 pm | #

    I’m waiting to see how Texans handle a Fundamentalist Christian clerk who refused a marriage license to two Muslims. And, potentially even more interesting, how Hoosiers react if a deeply religious Muslim store owner refuses to serve a woman who comes into his store unaccompanied by a man.
    Outta test the consistently of those fragile ties to religious freedom, yes?

  4. Snarki, child of Loki July 1, 2015 at 9:02 am | #

    And all of those clerks somehow swore an oath to their God, on a Bible, that they would discharge the duties of their office, and follow the Law.

    So, they can (a) do their job, and burn in Hel, (b) break their oath, and burn in Hel, or (c) resign.

    I suggest they chose door #3, but gasoline and matches are cheap in TX, so whatever.

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