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Texas AG: Clerks Can Refuse Marriage Licenses to Same-Sex Couples (Updated)

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Jorge Sanhueza-Lyon/KUT News
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UPDATE Monday 1 p.m. A Texas State Senator is asking the Department of Justice to monitor and intervene, if necessary, in Texas' implementation of the Supreme Court's ruling that legalizes same-sex marriage nationwide.

The request comes after Texas Attorney General Ken Paxton issued an advisory opinion yesterday, saying some government officials could refuse to grant marriage licenses to same-sex couples, if they object on religious grounds.

State Senator Rodney Ellis (D-Houston) sent a letter to U.S. Attorney General Loretta Lynch asking her and the DOJ "to ensure that Texas officials do not flout the Supreme Court's ruling and blatantly discriminate against same sex couples attempting to secure the rights granted to them under the U.S. Constitution." Ellis adds "officials who take an oath to uphold the Constitution should not be able to deny Texans' constitutional rights with the backing of state legal guidance."

Read Ellis' full letter here.

ORIGINAL STORY Sunday 5:25 p.m. Texas Attorney General Ken Paxton says county clerks and others in Texas that issue marriage licenses may be able to refuse to issue marriage licenses to same-sex couples if they have religious objections, though those clerks could still face lawsuits.

In an opinion issued Sunday, Paxton writes: "County clerks and their employees retain religious freedoms that may provide accommodation of their religious objections to issuing same-sex marriage licenses." But he goes on to say that the duty should be delegated to someone in the clerk's office who does not object.

The opinion came in response to a request last week from Lieutenant Governor Dan Patrick, asking what the duty of county clerks and justices of the peace who had religious objections would be if the U.S. Supreme Court overturned state bans on same-sex marriage. The Court did just that on Friday. 

While Paxton says clerks can claim a religious objection, he adds they could still face a legal challenge.

"Factual situations may arise in which the county clerk seeks to delegate the issuance of same-sex marriage licenses due to a religious objection, but every employee also has a religious objection to participating in same-sex-marriage licensure," Paxton writes. "In that scenario, were a clerk to issue traditional marriage licenses while refusing to issue same-sex marriage licenses, it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution."

Paxton claims many pro-bono lawyers are ready to help test such cases and that his office would do whatever it could to assist clerks facing legal challenges.

The opinion serves as guidance to county officials who said they would wait for word from Paxton about how to proceed.

Many Texas counties, however, began issuing marriage licenses to same-sex couples almost immediately on Friday, including Travis, Dallas and Bexar counties. Harris County began issuing them Friday afternoon.

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