Same-sex marriage is now the law of the land. But, according to the state's top attorney, not every county clerk has to perform those marriages, if they don't want to. As Houston public media’s David Pitman found, there are ways that opinion could hold up, and ways that it could fall apart.
Attorney General Ken Paxton writes, in a non-binding opinion, that county officials who don't want to give a license to a gay couple because of religious objections don't have to.
However, as South Texas College of Law professor Charles "Rocky" Rhodes points out, if the go-to person for marriage licenses in a county won't deal with a same-sex marriage, there has to be somebody else around who will.
"So this would not allow a county clerk's office, as a whole, to refuse to issue same-sex marriage licenses."
Attorney General Paxton is offering lawyers, who don't work for the state but will work for free, to counties that are sued for not marrying gay couples. Professor Rhodes says any county that faces such a lawsuit will most certainly lose.
"And if the county clerk's office continues to resist, [it] may be held in contempt, and could have to pay the challengers' attorneys’ fees."
But all of that hinges on a gay couple filing a legal challenge against the specific county that refuses to marry them. Rhodes says without that lawsuit, any county that won't issue a marriage license to a same-sex couple can keep up that policy, as if the Supreme Court ruling never happened.