Texas Lawmakers Allow Judges to Recuse Themselves From Same-Sex Marriage Over Religion


The Texas Senate tentatively approved a bill by a 21-10 margin on Tuesday that would allow county clerks and judges to recuse themselves from issuing marriage licenses to same-sex couples if they object on religious grounds. It is expected that the bill will face a full vote within the week.

This is the kind of legislation that sparks fierce debates about civil liberties on both sides of the aisle, and contention on the issue is all but guaranteed. The LGBT community has only had full marriage rights since 2015, which came on the heels of decades of struggle for equality in spousal rights. On the issue of religious liberties, citizens are protected by The First Amendment. The operative word in that last sentence is citizens.

While every citizen has the right to religious freedom, as well as the right to protest, these do not extend to the working hours of judges or county clerks. It is the duty of a judge to interpret the law, remain impartial, and adjudicate accordingly. Using personally held religious beliefs to frame your interpretation of secular laws is about as far from impartiality as one can get. As for county clerks, their role is to file and track legal documents, not to weigh in on the entirety of the laws themselves.

Understanding the distinction between job duties appointed by an electoral process and our rights as individual citizens is critical in a battle like this one. Freedom of religion is a cornerstone of American liberty. But, then again, so is the separation of church and state. If a county clerk saw fit to throw chicken entrails on a blueprint to determine property lines, despite any training that he may have received on the matter, the public would be reasonable in its objections to that practice. However, if that same clerk left his entrails at home and dutifully executed the charge of his office, no objection would be levied.

There is certainly precedent for judges to recuse themselves from adjudicating on matters where a previously formed bias may exist, but it becomes problematic when their biases are formed by the actual law before them. To say “I have a close personal relationship with the defendant in this case, therefore I'm recusing myself.” is crucial to keeping justice as blind and balanced as humanly possible. Saying “I have a personal objection to the law at hand because of my religious beliefs, so I don't wanna.” is an affront to the very job that was bestowed upon them by the electorate.

The Supreme Court's 2015 decision to legalize gay marriage should've offered finality on the subject as far as the courts were concerned. Even Kim Davis, the champion of religious county clerks who hails from Kentucky, was jailed for her refusal to issue marriage licenses to same-sex couples. A judge ruled that she would be in contempt of her office if she continued to block licenses, and she in-artfully circumvented the ruling by allowing her staff to follow that particular federal law, but kept her hands chaste and pure by not issuing the documents herself.

If every one of the clerks and judges who opposes gay marriage decided to start a coalition and protest on their own time, they would be exercising one of the best parts of our democracy, which is the right to protest. It would also offer the LGBT community and its ever-growing number of allies the opportunity to counter-protest. This is the kind of activity that allows all parties to have their voices heard, bringing balance to matters of public concern. Conversely, leveraging the power of your seat in the court to force the public to be agreeable with your personal religious beliefs is oppressive, illegal, and a perfect demonstration of the very reason that the framers of The Constitution knew it was imperative to not let the church and the state sit at the same table.

The fact that Texas is the largest red state in the union and the bill in question had full Republican support means that it has a very high likelihood of passing fully at the state level. But the fact that same-sex marriage is legal at the federal level, means that the Texas lawmakers who support this egregious infringement on human rights are pushing a boulder up a hill. Their attempt is to resurrect a precedent for discrimination that has already been shot down by the highest court in America. Unless the GOP can mange to overturn marriage equality altogether, then these public officials will have no choice but to uphold the law as their jobs dictate.

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