Is it really legal for states not to perform same-sex marriages?

If you’ve been keeping up with the rollout of the new same-sex marriage legislation, then you know that some states — many of them conservative and/or Southern — are putting up their fair share of resistance. On Friday, Mississippi and Louisiana — the second and fourth most religious states, according to the Washington Post — stopped issuing marriage licenses altogether. Meanwhile, an as-yet-unknown Utah legislator has prepared to effectively end legal marriage in the state by drafting a law that would completely stop the issuance of marriage licenses. But by Monday, most states were complying and marriages took place in Louisiana, Texas, and Mississippi despite protests from conservative lawmakers and citizens.

Still, that doesn’t mean the fight for marriage equality is necessarily over. Opponents of same-sex marriage have already begun crafting arguments (and legal strategies) against the legislation. Here’s what they’ve come up with and explanation as to whether these plans have any merit.

Religious Freedom

The religious freedom argument — covered under the First Amendment — has become a major rallying point for conservatives as of late, especially after last year’s unexpected Hobby Lobby victory wherein the Supreme Court ruled that the owners’ religious beliefs allowed the company to prohibit female employees from obtaining contraception prescriptions using their Hobby Lobby health insurance.

On Sunday, Texas attorney general Ken Paxton made his religion-based opposition clear, saying that while same-sex marriage should “peaceably coexist with longstanding constitutional and statutory rights,” the state “must speak with one voice against this lawlessness, and act on multiple levels to further protect religious liberties for all Texans.”

But if you look to this year’s Religious Freedom Restoration Act in Indiana, which many saw as nothing more than a thinly-veiled attempt to allow citizens to discriminate against LGBTQ+ individuals on the basis of religion, there’s little chance that the religious freedom argument will hold up, especially under the weight of social pressure. Just one week after passing the act, Indiana lawmakers backpedaled, announcing that provisions would be made to prevent discrimination against LGBTQ+ individuals.

Stop Issuing Marriage Licenses

The legal equivalent of breaking a toy so no one can play with it, some legislators have stopped issuing marriage licenses all together or are considering doing so. On Friday, the New York Times reported that Probate Judge Wes Allen of Alabama’s Pike County would not be issuing any marriage licenses, a practice he has maintained since February when Alabama was swept up in a federal court decision that suddenly made gay marriage legal in the state. As of today, the Alabama Supreme Court has issued a ruling that will put off the implementation of the new same-sex marriage law for 25 days — the amount of time it takes for a federal Supreme Court ruling to become law. Even so, most large counties in the state have continued issuing marriage licenses and once those 25 days are up, and attempts to appeal the law have been (most likely) rejected, same-sex marriage will be unequivocally legal in all 50 states. Those who refuse to issue licenses may find themselves in a world of legal trouble.

States’ Rights

And finally, there’s the states’ rights argument, which you’re much more likely to hear from politicians than everyday people. A little background: The last of the original 10 amendments, a.k.a. the Bill of Rights, grants the federal government only as much power as the Constitution allows with all other powers going to the states and the people. An example is marijuana legislature, which despite being illegal on a federal level has been legalized in Washington and Colorado because the citizens of those states wanted to legalize the drug. When we apply this to same-sex marriage there has been a confusing patchwork of legislation with some states like Massachusetts and New York legalizing same-sex marriage on their own while others like Alabama were “forced” into accepting it.

The entire basis of last week’s same-sex marriage case, Obergefell v. Hudson, was that the plaintiff, James Obergefell had legally married his partner in Maryland, where gay marriage was legalized by the state in 2013, but lived in Ohio, where gay marriage was still illegal. But with the new Supreme Court ruling, Ohio could no longer discriminate against Obergefell and had to recognize his marriage to his late partner, John Arthur, or be in direct violation of his constitutional rights. This has some politicians saying that states that may never have legalized gay marriage on their own had their rights been “violated” because the Supreme Court made a final decision without the popular consent of U.S. citizens living in these states. Here are just a few snippets of political outrage:  

Sticking with the amendment line of thinking, a few politicians, including Wisconsin governor Scott Walker and Louisiana governor Bobby Jindal, are calling for the passage of a 28th amendment to the Constitution that would allow states to keep marriage between a man and a woman. But considering the fact that (1) Richard Nixon was in office the last time a brand new amendment was passed and that (2) the 27th Amendment — the latest amendment — took 202 years to ratify, we wouldn’t hold our breath on that one.

Other

Of course, there are dozens, if not hundreds, of other reasons people are against same-sex marriage, including fears that it will  lead to polygamy, ruin the institution of marriage, allow same-sex couples to adopt children, even “demean” marriages between same sex-attracted men and straight women.

But all of these opposition strategies are flimsy at best and poorly thought-out at worst, and it appears that same-sex marriage is truly and thankfully here to stay. As with all landmark legislation, including Civil Rights, Social Security, and setting the legal voting age at 18, it will take a while for some people to find their place in this new way of doing things and this new standard of tolerance. But as for the question, is it really legal to not perform same-sex marriages? There are ways for states to try and get around it, but ultimately this is now the law of the land. And we are so happy about it.

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