AUSTIN — Molly Criner hasn’t yet been asked to issue a marriage license to a same-sex couple, but if lawmakers approve what supporters call a religious-protection bill, she would be allowed to refuse to do so.

“It’s really important for elected officials to have their religious liberties preserved,” said Criner, who works in Mertzon, about 30 miles southwest of San Angelo in Irion County, where she’s district clerk. “You do what you think is right.”

Striking down state bans, the U.S. Supreme Court in 2015 ruled that the 14th Amendment confers a Constitutional right to same-sex marriage, but Texas Senate Bill 522 would allow county clerks and other public officials to refuse to issue marriage licenses to couples to whom they have religious objections.

The bill, which emerged from committee this week, would allow clerks to designate someone else to issue the license, but Criner said that since she and her two deputies would decline if asked, “I guess you’d have to call the other counties around me.”

That’s a problematic answer for lesbian, gay, bisexual and transgender advocates, who say the proposal uses religion to justify discrimination, and allows public officials to pick and choose which taxpayers they will serve.

“This bill makes a mockery of religious freedom by allowing public officials to discriminate against virtually anyone who fails to meet their personal moral standards,” Kathy Miller, president of the Texas Freedom Network, said in a statement. “That could include same-sex couples but also people who have been previously divorced, couples who have lived together outside of marriage, interfaith couples and many others.” 

Dann Quinn, communications director for the network, which describes itself as a “watchdog for monitoring far-right issues, organizations, money and leaders,” said that allowing officials to say no to license applications would open a “Pandora’s box” of unforeseen consequences.

“If you choose to run for office then you have to do your job,” Quinn said. “If not, find another job.”

In written testimony to the Senate State Affairs Committee, two former county clerks said they would have stayed in office if they’d had been able to opt out of issuing licenses legally.

“After the U.S. Supreme Court ruled that Texas must change its laws related to marriage licenses, I was very concerned that my conscience rights and sincerely held religious beliefs about marriage would not be protected …” Joyce Lewis-Kugle, who retired as Rusk County clerk in 2015, wrote in testimony to the committee. “I was aware that a clerk in Texas was sued and that a clerk in another state went to jail because of her religious beliefs on marriage.

“Instead of taking a chance on the unknown climate of the law on conscience protection and right of recusal, I chose to retire.”

Bella Rubio, who retired as combination county clerk and district clerk for Real County in 2016, echoed Lewis-Kugle, saying in written testimony that she retired after 22 years rather than “taking a chance on the unknown climate of the law on conscience protection …”

In 2015, Hood County paid almost $44,000 to settle a lawsuit after County Clerk Katie Lang declined to issue a license to a same-sex couple.

Lang is still on the job. 

In a statement on the Hood County website, she wrote that while “the religious doctrines to which I adhere compel me to personally refrain from issuing same-sex marriage licenses, … the County Clerk’s Office of Hood County will have staff available and ready to issue same-sex marriage licenses.”

The bill would also allow judges to refuse to perform marriage ceremonies for any reason other than a prohibited reason, such as discrimination based on race. 

Stephen Vladeck, a University of Texas School of Law professor, said that the bill represents “a next frontier” of legal issues. 

But is it unconstitutional?

“As long as it does not interfere with the ability of the couple to get the license, no,” Vladeck said. 

John Austin covers the Texas Statehouse for CNHI’s newspapers and websites. Reach him at jaustin@cnhi.com