By Tim Devaney – 06/30/15
URL of the Original Posting Site: http://thehill.com/regulation/court-battles/246582-states-move-to-counter-gay-marriage-ruling
More than a dozen states that saw gay marriage bans struck down last week by the U.S. Supreme Court are vowing to protect religious liberty, even though they grudgingly accept that the ruling is now the law of the land.
- In the wake of Friday’s decision, Texas’s attorney general told county clerks in the state that they have a statutory right to refuse marriage licenses to same-sex couples if they have religious objections to gay marriage.
- In Alabama, state Supreme Court Chief Justice Roy Moore — a staunch opponent of same-sex marriage — said a new state court order could temporarily delay the practice, only to walk back the remarks.
- And in Louisiana, the attorney general contends there is nothing in the Supreme Court’s ruling that renders it effective immediately, raising questions about how soon the state would have to comply.
Many other states across the South and upper Midwest are criticizing the ruling as an encroachment on states’ rights and religious freedom, though most acknowledge they cannot ignore it. “Ultimately, my position is that the state should have been legally entitled to define marriage,” South Dakota Attorney General Marty Jackley told The Hill. “I feel the state has traditionally held that role, and certainly when it’s in the state’s constitution it should be respected.” “But we are a nation of laws and we must respect that,” he added.
Before the Supreme Court’s ruling last Friday, those states and 11 others — Arkansas, Georgia, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio and Tennessee — had laws prohibiting same-sex marriage. Though not outright defying the high court’s decision, states are now seeking to make clear the limits of its scope. “The ruling does not tell a minister or congregation what they must do, but it does make clear that the government cannot pick and choose when it comes to issuing marriage licenses and the benefits they confer,” said Kentucky Attorney General Jack Conway.
Texas Attorney General Ken Paxton said the state would issue exemptions to county clerks, judges and justices of the peace who express religious objections to issuing gay marriage licenses, promising to “defend their religious beliefs.” “The government cannot force them to conduct same-sex wedding ceremonies over their religious objections,” Paxton said, accusing the Supreme Court of “ignoring the text and spirit of the Constitution to manufacture a right that simply does not exist.”
In cases where there are objections, however, other public officials would issue the documents.
A federal judge ruled in May that Alabama’ s same-sex marriage ban was unconstitutional and stayed her opinion until the Supreme Court ruled on the issue. This week, Moore — the state Supreme Court’s chief justice — initially said a new motion in the earlier case would effectively table Friday’s U.S. Supreme Court decision legalizing gay marriage, a case known as Obergefell v. Hodges.
But same-sex marriage advocates argued that the order has no tangible effects thanks to a federal injunction, and Moore later backed away from the assertion. “In no way does the order instruct probate judges of this State as to whether or not they should comply with the U.S. Supreme Court’s ruling in Obergefell,” he said.
Still, Alabama Attorney General Luther Strange accused the Supreme Court of “overturning centuries of tradition and the will of the citizens.” “I expect the focus will now turn to the exercise of one’s religious liberty,” Strange said.
A number of attorneys general also complained that the Supreme Court’s decision infringes on states’ right to define marriage how they see fit. Louisiana Attorney General Buddy Caldwell said the court’s ruling “overturns the will of the people of Louisiana, and it takes away a right that should have been left to the states.”
Caldwell is threatening to essentially disregard the Supreme Court’s ruling for the time being, saying there is “nothing in [the] decision that makes the court’s order effective immediately. Therefore, there is not yet a legal requirement for officials to issue marriage licenses or perform marriages for same-sex couples in Louisiana.”
Gay rights activists warn that any acts of perceived defiance would threaten to undermine the legal system. “It’s a dangerous message for southern governors to disobey an order from the Supreme Court,” said Marc Solomon, national campaign director at Freedom to Marry. “The notion that public employees get to pick and choose which laws they follow based on their religious beliefs is a really dangerous precedent and a terrible public policy,” he added. “If you’re a public official, you need to carry out those laws, and you don’t get to decide whether they’re right or wrong.”
The attorneys general in North Dakota and Mississippi both said they are waiting on other court cases to be resolved before they enforce the Supreme Court’s ruling on same-sex marriage. Other states like Ohio and Nebraska expressed disappointment that the Supreme Court was interfering with their marriage laws but also indicated they would respect the ruling.
And top officials in a handful of states that formerly banned gay marriage are now welcoming the Supreme Court’s ruling. Missouri Attorney General Chris Koster said he would move swiftly to recognized same-sex marriage in the wake of the court’s ruling. “The history of our country has always been one of moving toward inclusion and equality,” Koster said in a statement. “I applaud the court for their courage and strong sense of fairness. Missourians should be seen as equals under the law; regardless of their gender, race, or whom they love.”
Austin Yack, Hanna Krueger, Kate Hardiman and Rachel Ravina contributed.