In direct contradiction to an attorney general opinion, Harris County Attorney Vince Ryan said today that despite religious objections, judges must perform same-sex weddings if they do so for heterosexual couples and that county clerks cannot refuse to issue same-sex marriage licenses.
"It's all or nothing," Ryan said in a statement. "Judges and JPs are not required to perform marriages. However, if they perform marriages for anyone, they cannot legally discriminate against same-sex couples by refusing to perform only those marriages. Everyone must be treated the same under the law."
The Texas Family Code authorizes judges to perform marriage ceremonies, but it's not mandatory, Ryan noted in his opinion. However, the family code prohibits a judge from discriminating based on race, religion or national origin. The U.S. Supreme Court in Obergefell v. Hodges found that same-sex couples have a constitutionally protected, fundamental right to marry, Ryan wrote.
"An agent of the state acting in an official capacity as a judge, when conducting a wedding ceremony, may not deprive any person of the equal protection of the law," he wrote. "A judge who chooses to perform marriages must do so for same-sex couples, notwithstanding any personal religious objection."