In Texas, Judges Can Now Refuse To Officiate Gay Weddings. The Warning Signs Have Been There For Years.

Whatever Republicans are allowed to get away with when it comes to the trans community, sooner or later, they will do to gay people too.

The Texas Supreme Court Building in Austin, Texas | Image Credit: Wikimedia Commons

Last Friday, the Texas Supreme Court announced a new rule change that will allow judges to “publicly refrain from performing a wedding ceremony based upon a sincerely held religious belief.” Unlike what’s being sought in the Kim Davis case, this means the judges will still have to issue the licenses, but they will be able to opt out of officiating same-sex weddings. This comes despite the fact that judges, unlike religious ministers, are supposed to perform their duties impartially.

However, this isn’t new. It’s not new to this decade, and it’s not even new to this year. While the legal storm is just now reaching gay rights, its assault on trans Americans has long flown under the public radar. And it’s not unique to Texas. So how did we get here?

All Too Familiar

Like same-sex marriage, courts have held an outsized influence on gender marker changes for decades. In fact, until Nevada finalised a rule in 2016 eliminating the court order requirement, no state allowed gender marker changes without a court order or proof of surgery. And while the number of states that have since ditched the court order requirement has grown to 26 (plus DC and Puerto Rico), many states haven’t followed suit. Here’s a map of current birth certificate laws:

For sources, tables, and maps for other issues, head to Transitics’ CATPALM page.

As is shown, 7 states and 1 territory have court order requirements in place, and although they are far from the most restrictive policies in the US, they are the most vague. In all of these states, the requirements for a court order are not well established, handing judges a significant amount of discretion in the process. This creates a luck-based system where some judges can be lenient and easy to work with while others may refuse to grant the order altogether.

And that’s just for birth certificates. When factoring in driver’s licenses, 4 more states are added: Georgia, Kentucky, Missouri, and Oklahoma, bringing the total number of states & territories that require a court order for a gender marker change to 12. And actually, that’s still incomplete. Indiana has a weird system where counties are still able to amend birth certificates following a court order despite a statewide ban, and Wisconsin technically has a surgery requirement for the court order itself, but that isn’t always enforced, and the state also explicitly accepts court orders from other states. Okay, now we’re at 14. But what’s the point of this?

A Slippery Slope

In 1996, Congress passed the Defense of Marriage Act (DOMA), which outlawed federal recognition of same-sex marriage and allowed states to refuse to recognise same-sex marriages performed in other states. Until Obergefell v. Hodges overturned the latter provision in 2015, states were able to refuse recognition of legally performed gay marriages. While 2022’s Respect for Marriage Act (RFMA) forces the recognition of out-of-state marriages, it remains silent about performing them. But despite its codification, that provision is not safe.

To see why, we have to return to the issue above, because mirroring DOMA, many trans Americans are currently facing that same politically motivated geographic inequality. In 6 states, court orders from other states (such as those issued by California, Illinois, and New Jersey, which can be sought by residents of these states who weren’t born in them) will not be recognised under any circumstances when it comes to birth certificates even though all other identity-related orders (like name changes) will. And for IDs, the number of states that will reject another state’s birth certificate when it is amended is between 2 and 4: Florida and Texas explicitly reject them, Tennessee probably does but it depends on their internal policies, and Iowa probably doesn’t but it’s too early to tell. To do so, they rely on the “public policy exception” of the Constitution’s Full Faith and Credit Clause, which would otherwise outlaw these actions.

In Texas, this exact logic is now beginning to once again be applied to gay marriages as well, starting with judge’s discretion. Because if a judge has discretion in performing a marriage, it wouldn’t be that much of a stretch for them to claim they have discretion in refusing to recognise a same-sex marriage in family court, estate cases, joint adoption, and so many other areas. It’s a backdoor to challenging both Obergefell and the RFMA, one that could be brought before an increasingly conservative Supreme Court should Kim Davis’ appeal fail.

And worst of all: this won’t just be in the courts. Consider the language used in laws like Iowa’s SF 418 and Kansas’ SB 180: “the term ‘equal’ does not mean ‘same’ or ‘identical,’” and “separate accommodations are not inherently unequal.” Not only is this the language that was found in Jim Crow laws, but it’s also the language that was used to justify withholding marriage equality in favour of civil unions. And as I covered last month, this same legal framework of ‘respecting biological differences’ is already being weaponised against the rest of the LGBTQ+ community.

Maybe Texas’ rule is as far as this will go. Maybe the Supreme Court won’t take up Kim Davis’ case. But that won’t change what Republicans are planning. For the past couple years, they’ve meticulously eroded public support of same-sex marriage. They’ve banned books with LGBTQ+ themes. They’ve erased the transgender and bisexual participants of Stonewall.

So trust me when I say this: whatever Republicans are allowed to get away with when it comes to the trans community, sooner or later, they will do to gay people too.