The first lawsuit in Texas against a county clerk who allegedly refused to issue a marriage license to a gay couple has been filed in the U.S. District Court for the Eastern District of Texas, Tyler Division.
Smith County Clerk Karen Phillips has been sued in her official capacity as the clerk for the county. Karen Wilkerson filed a motion for a preliminary injunction, or in the alternative, for a temporary restraining order asserting that Phillips refused to issue her and her partner a marriage license on June 26th, the same day the U.S. Supreme Court issued its same-sex marriage opinion. While the clerk of the county has now issued the lesbian couple a marriage license, Wilkerson has not asked for a dismissal of the case and a civil rights action for damages, costs, and attorney’s fees is still pending.
On Friday, Karen Wilkerson, sought a court order compelling the Smith County county clerk to issue her and Jodie Smith a marriage license. The complaint quotes from the SCOTUS opinion in Obergefell v. Hodges: “The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.”
The complaint asserts that the federal court has jurisdiction because the lawsuit arises under the Fourteenth Amendment to the United States Constitution.
The complaint alleges that “The County Clerk refused to oblige the request solely on the stated ground that the form they used had separate sections for a ‘male’ or ‘man’ and ‘female’ or ‘woman,’ i.e., the form they have chosen to use only accommodates opposite sex couples.”
It continues, “The true reasons for Defendant Phillips’ refusal to issue the license are prejudice against same-sex couples, to try to humiliate and shame the Plaintiffs, to deprive them and their relationship of the dignity to which they are by law entitled, and to inconvenience the Plaintiffs.”
Wilkerson specifically charged, “The Defendant is just mean-spirited and petty.”
According to the lawsuit filed, the families of the couple were present “today” (Friday) to attend their wedding. They also stated that “a preacher was standing by.”
Wilkerson has sued asserting civil rights violations under 42 U.S.C. section 1983. This provision was enacted in 1871 as part of the Civil Rights Act of 1871. It has also been referred to as the “Ku Klux Klan Act” because one of the objectives of the Act was to provide a civil cause of action against abuses committed in the south, including by the Ku Klux Klan.
Section 1983 provides that:
Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
In addition to asking for a preliminary injunction or a temporary restraining order, Wilkerson plead for damages and all other relief authorized by section 1983 of the Civil Rights Act, including costs of suit and attorney’s fees.
Although the couple was eventually issued a marriage license, and had a ceremony scheduled for Monday night, their request for damages, costs of suit, and attorney’s fees remain pending.
Breitbart Texas called counsel for Ms. Wilkerson, Blake Henry Bailey of the Bailey Law Firm in Tyler, Texas, but the call was not returned as of the time of publication of this article. Breitbart Texas also attempted to reach the Smith County Clerk, and Ms. Wilkerson before publication. This article will be updated if Breitbart Texas is contacted by one or both of these parties.
Breitbart Texas reported that Texas Attorney General Ken Paxton responded to the “newly invented federal constitutional right to same-sex marriage” created by the “activist U.S. Supreme Court by telling Texas officials, including county clerks and judges, that “Texas must speak with one voice against this lawlessness.”
The Texas Attorney General issued an Attorney General opinion concluding that Texas county clerks do not have to issue marriage licenses if they can assign the duty to a deputy clerk and the deputy clerk does not have a religious objection. The state’s top lawyer opined that county clerks and their employees “may allow accommodation of their religious objections to issuing same-sex marriage licenses.”
Breitbart Texas reported about the substance of the Attorney General’s opinion. The Attorney General specifically acknowledged that “any clerk who wished to defend their religious objections and who chooses not to issue licenses may well face litigation and/or a fine.”
The AG stated in a press release, “numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights.”
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served the state of Texas as a prosecutor and an associate family court judge. Follow her on Twitter@LanaShadwick2
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