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DA's letter about gay marriage widely distributed

By Jessica Priest
July 7, 2015 at 10:51 p.m.
Updated July 8, 2015 at midnight

A county clerk more than 500 miles away said she got some peace of mind about the U.S. Supreme Court's same-sex marriage ruling from an unexpected source - Victoria County District Attorney Stephen Tyler.

"I felt that Austin was not giving us the correct advice, so I really appreciated what he had to say. ... He gets an attaboy from me," Yoakum County Clerk Deborah Rushing said.

Rushing was talking about a letter Tyler sent to Victoria County Clerk Heidi Easley on June 30.

It answered burning questions Easley and others across the state had about the implications of the ruling and how to proceed, questions they felt hadn't been answered by Texas Attorney General Ken Paxton.

Paxton wrote June 28 that county clerks, justices of the peace and judges could exercise their religious freedoms by refusing to issue marriage licenses and perform marriage ceremonies to same-sex couples. He added the caveat that the strength of such a claim would depend on the facts of each case.

Tyler pointed out that refusing to perform job duties would open county clerks up to a lawsuit, and Paxton had not promised to foot their legal bills.

Rushing posted Tyler's letter on a county clerk listserv, and it has been widely distributed since. It deciphers the legalese and cuts out the politics, elected officials said.

Tyler was surprised by the attention.

"Not being an oracle or a prophet, I avoid giving opinions in the form of riddle, rhyme or parable. I say all this because folks are inclined to believe I'm advocating for a side; I am not doing anything but giving direct and straight legal advice (no pun intended) in a form useful to the official requesting the advice," he wrote in an email to an Associated Press reporter.

He's also been interviewed by the Texas Tribune. The letter has been quoted in the Dallas Observer and memorialized online and at the Legislative Reference Library of Texas in Austin. It has even shaped the opinion issued on July 1 by the Harris County Attorney's Office, which has a staff of about 100 attorneys grappling with the legal dilemmas of a population of more than 4 million people.

Terence O'Rourke, the special assistant to the county attorney there, said it's important even for counties Harris' size to keep abreast of what their colleagues in smaller jurisdictions have to say. Harris County's opinion was that public officials must accommodate gay couples.

"It's all or nothing," Harris County Attorney Vance Ryan wrote. "Judges or 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."

Tyler's opinion was in line with Harris' but came from a different perspective, said O'Rourke, who described Tyler's writing style as "down home."

For example, the last few sentences of Tyler's letter read: "[Paxton] is not the lifeguard in this pool, and the water is deep and dark, so all swimmers will swim at their own risk."

"It was so candid and so fresh," O'Rourke said. "When you're doing legal work like this, and you talk to people who have really thought it out and come to the same conclusion, you call them up and compare notes. That's what we did."

Rob Kepple, executive director of the Texas County & District Attorneys Association, emailed Tyler's letter to 35 board members and whoever called his office with questions.

Kepple liked how Tyler showed that clerks who refuse to perform their duties can even be charged with a misdemeanor and fined between $200 and $500.

"Steve jumped in there pretty quickly and did a good job. The letter was very useful to a lot of folks," Kepple said.

When the U.S. Supreme Court lifted the ban on gay marriages on June 26, Rushing didn't have anyone to turn to. All she could do was refresh the governor's and attorney general's websites and keep checking the listserv. Her county attorney, county judge and district judge were out of town. She wanted to issue the licenses but was afraid the incorrect wording on the forms she was provided by the state would make the document null and void.

The next week, her county attorney forwarded her Tyler's letter, and she began issuing them.

"The clerks had a very difficult time, and it's a shame because we are a vital part of county government and we just didn't have anyone who had our backs," Rushing said.

Easley felt the same way, but also having worked with Tyler for years, anticipated he'd give her the go ahead.

Easley worried Tuesday that people had misconstrued her delay as malicious.

"I know though that emotions run high," Easley said. "Mr. Tyler gave us more direction and a foundation to stand on when someone comes back to us and says you issued it when the AG said not to."

She's not yet had an employee refuse to issue a marriage license to a gay couple. Other clerks in the state have worked around such problems by making sure there's at least one employee OK with the practice at the office whenever it is open.

Tyler has advised against that, though.

"Suggesting a rotation of clerks accommodating a conscientious objection so long as it is 'timely and non-discriminatory' invites the opposite result in practice. I believe such action as untenable as 'separate but equal,'" he wrote.

Paxton, meanwhile, has not changed his mind, prompting Rockport attorney Steve Fischer to collect about 155 attorneys' signatures. Fischer sent Paxton a letter Friday that serves as a warning the group will file a grievance against him with the state bar.

"When Paxton was confronted with what I was doing, he said the U.S. Supreme Court's decision was only advisory. That was his quote. The average law student would understand that is totally wrong," Fischer said Tuesday.

When asked for a comment about Tyler's letter, Texas Attorney General spokeswoman Cynthia Meyer said Paxton's opinion already "speaks for itself."


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