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Same-sex marriage ruling faces religious rights battle in Texas

Rick Jervis
USA TODAY
Jim Obergefell, the named plaintiff in the Obergefell v. Hodges Supreme Court case that legalized same sex marriage nationwide, is backed by supporters of the courts ruling on same-sex marriage on the step of the Texas Capitol during a rally Monday, June 29, 2015, in Austin, Texas. The Supreme Court declared Friday that same-sex couples have a right to marry anywhere in the United States. (AP Photo/Eric Gay) ORG XMIT: TXEG112


AUSTIN – As supporters of gay marriages celebrated a landmark U.S. Supreme Court ruling, a new battle for same-sex marriage erupted in Texas where government leaders asserted their citizens' religious liberties trumped the individual right to marry.

Following Friday's Supreme Court decision, two of Texas' top officials, Gov. Greg Abbott and state Attorney General Ken Paxton, issued opinions directing state agencies to "respect and preserve Texans' religious liberties," in essence encouraging county clerks to refuse to issue licenses to gay couples if it conflicts with their religious beliefs.

Those salvos prompted a Monday morning gathering at the steps of the Texas Capitol by supporters of same-sex marriage, including civil liberties leaders, an openly gay state lawmaker and Jim Obergefell, the plaintiff in the recent Supreme Court case.

"In many states, including my home state of Ohio and right here in Texas, you can get married but then suffer consequences," Obergefell said. "Friday's historic ruling is a victory, but it's just the beginning. It's time for real, lasting action, and it's time for full equality in Texas."

As of midday Monday, some Texas counties – including Williamson, Denton and Collin – were complying with the Supreme Court decision and issuing the licenses, said Chuck Smith, executive director of Equality Texas, which advocates for same-sex marriages.

"In courts across the state of Texas, clerks are understanding they have taken an oath to uphold the law," he said.

Contesting the law on religious grounds will be the next major battlefield for the issue and could see it return to the Supreme Court, said Texas A&M University Law Professor Meg Penrose, who has followed the issue.

All Texas county clerks take an oath to uphold state laws and the U.S. Constitution, which includes Friday's decision, she said. But how far religious beliefs can protect state and county workers from performing their duties remains an unanswered constitutional question. Extending that argument could mean a Catholic judge deny a divorce because it goes against his religion, or a state worker could refuse to issue liquor licenses because it clashes with his religious beliefs, Penrose said.

Ultimately, it will come down to two fundamental rights – religious freedom granted explicitly in the Constitution, and same-sex liberties, which have been confirmed through previous court decisions – battling for precedence, she said.

"You have these two fundamental rights that are completely at odds with one another," Penrose said. "It will ultimately be up to the Supreme Court to decide which right reigns supreme."

Jonathan Saenz, president of Texas Values, which opposes same-sex marriage, called Friday's Supreme Court decision "one of the most egregious forms of activism of our time" and said the justices upholding the marriages overstepped their legal authority.

Government officials and county workers around Texas should stand firm by their beliefs of traditional marriages, he said. "All Texans should be free to believe and not be forced by government to violate their sincerely-held religious beliefs that marriage is between one man and one woman," Saenz said.

At Monday's gathering at the Texas Capitol, Mark Phariss and Vic Holmes, plaintiffs in a Texas gay marriage lawsuit now pending at the U.S. Court of Appeals for the 5th Circuit, took the podium to denounce Paxton's and Abbott's directives and call for broader rights for same-sex couples.

Phariss, a Plano attorney, described attending law school with Abbott and visiting the then-law clerk at his Houston hospital bed shortly after the accident that paralyzed Abbott from the waist down. Phariss and Holmes are seeking the same protection against discrimination afforded to Abbott under the Americans with Disabilities Act, he said.

"That is the exact same protection we seek for ourselves," Phariss said. "Nothing more, nothing less."

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