“Have you ever heard of Michio Kaku? He’s a physicist at some university in New York City who says that we have parallel universes, and that it might be possible to travel between them, whether accidentally or on purpose,” an older gentleman said, standing between supermarket shelves stocked with prickly pear beer and packages of powdered potatoes. He was dressed in a red, white and blue button-down of thinly laced plaid, a pair of pressed khakis, boots, and a defining cowboy hat encircled with a brown leather band. For a man of at least 70, there wasn’t a wrinkle on him.
“I certainly believe that on February 2, 1968, I was killed in Saigon, Vietnam, and what happened to me is that I went into this universe that was exactly diametrically opposed to the one I had come from,” he drew a breath. “Everything that I believe in ain’t done in this country, and everything I’m opposed to is.”
Map Above: Mertzon is the county seat of rural Irion County in Texas. It is located 30 minutes west of San Angelo on U.S. 67.
With a face as straight as it had been when the Mertzon native had begun his diatribe on his feelings regarding same-sex marriage, the man spat a few more sentences about Communists and Russians, then abruptly said, “thank you” and continued down the aisle.
In Irion County, not all sentiments are so colorful, but the people have had plenty to talk about since the County Clerk there, Molly Criner, declared that neither she nor her office will be issuing marriage licenses to same-sex couples despite the Supreme Court’s recent ruling that extends those rights to all US citizens within her borders.
Penned on July 4 and released by religious nonprofit Liberty Counsel on July 6, Criner’s “Declaration of Obedience to Law and Defense of Natural Marriage” promises to violate the Supreme Court’s ruling in Obergefell v. Hodges, stating that high court has “issued an opinion with no basis in the Constitution, the Fourteenth Amendment, American law, or Western history, purporting to overturn Natural Marriage and inventing a false ‘right’ to same-sex ‘marriage’”.
The clerk’s rebuke of the Supreme Court decision comes only 10 days after five justices, led by Justice Anthony B. Kennedy, made history when they declared in an opinion that the 14th Amendment to the Constitution extends every man’s rights of life, liberty and property to certain personal choices, including those regarding intimacy.
The narrow 5-4 decision stemmed from a case involving 14 same-sex couples and two men whose same-sex partners are deceased, each coming from varying states, including Michigan, Kentucky, Ohio and Tennessee.
“The petitioners claim the respondents violate the Fourteenth Amendment by denying them the right to marry or to have their marriages, lawfully performed in another state, given full recognition,” the opinion states.
Each of the cases were filed in their petitioner’s home state in the District Court, and each District Court ruled in their favor. When the respondents appealed to the Sixth Circuit Court of Appeals for the United States, however, the rulings were reversed and the cases were consolidated.
The U.S. Supreme Court agreed to hear the case on two questions only: Does the 14th Amendment require a state to license a marriage between two people of the same sex and, does that amendment require the state to recognize a same-sex marriage licensed and performed in another state that does grant that right?
On both counts, the high court ruled in favor of the petitioners, effectively nullifying any state law that holds otherwise. Cheers rang out jubilantly as those in favor of the decision celebrated a win, however in Texas, turmoil began brewing, with directives coming down from one of the state’s highest offices to disregard the law of the land.
When Molly Criner issued her manifesto on Monday, she took cues from Texas Attorney General Ken Paxton, calling the court’s decision lawless and citing past decisions described as “repulsive to the Constitution and Natural Law”.
Slavery was a strong theme among many of her claims, as she noted decisions from the 1800s that upheld the constitutionality of slavery and denied blacks citizenship. Roe v. Wade and several other cases, many dating back decades or centuries, were cited in support of Criner’s position that the Supreme Court is “not infallible”, however regardless of its smudged track record, she denies its authority to rule on this matter in the first place.
“No branch of the federal government has the power to redefine marriage, and holding that “Natural Marriage between one man and one woman remains the law in Texas, regardless of any court decision to the contrary,” Criner wrote. “Any court decision purporting to strike down Natural Marriage, including Obergefell v. Hodges, is ‘unauthoritative, void, and of no force’”.
Turning to personal religious belief on her declaration’s second page, Criner quotes Dr. Martin Luther King, Jr., then draws attention to the oaths of governmental office that all conclude with “so help me God”.
“A just law is a man-made code that squares with the moral law or the law of God,” Criner quoted King. “An unjust law is a code that is out of harmony with the moral law.”
At the conclusion of the two-page piece, Criner declares her plans to resist what she cannot deem law and calls upon others to do the same.
“With a firm reliance upon the providence of Almighty God and the support of my fellow citizens, I call upon all of the Officers of the State of Texas, the Governor, the Attorney General, and the members of the Texas Legislature, to join with me, and utilize all authority within their power to protect Natural Marriage from lawless court opinions, wherever their source.”
The Providence of Almighty God
Two women walked into the Irion County Clerk’s Office on Wednesday, greeted the staff and requested a marriage license. The clerks, seated behind desks in the open office space beyond the short counter, exchanged nervous glances.
“We,” the blonde one paused contemplatively, “will let you talk to our clerk, Molly Criner. She’s not in right now, but we will giver her a call and she can come in. In the meantime, y’all can wait here…or you can sit out in the hall. We have coffee, we have water, whatever you would like.”
With a smile on her voice, the clerk followed the two women out into the hall, eagerly explaining where to find the coffee and water at great length and offering to brew a new pot should they be in need of caffeine.
Criner, clad in a hot magenta knee-length skirt, white long-sleeve shirt and brown hair flowing loosely around her shoulders, extended her hand as she walked in and asked for the women’s names.
“We just need a marriage license,” one of the women repeated.
“Ok,” Criner sighed, “well, I can’t do that. But the clerk’s office in San Angelo is only 25 miles [away] and they’d be happy to issue one. I just can’t.”
For minutes the dialogue continued, the women questioning Criner as to why she was refusing and whether she had the paperwork and authorization. She responded that she does have the paperwork and is authorized, but repeated that she “just can’t do it.”
Referencing her staff, all of whom she said have issued marriage licenses to heterosexual couples in the past, Criner explained that no same-sex certificates would be coming out of her office.
“I have not delegated my authority to them to do it, so they don’t have a choice,” Criner said. “You know, we all believe very strongly in what we believe, and I admire you for that. I really highly recommend 25 miles down the road, where you can get a license in Tom Green County.”
Criner would not speculate as to what the legal repercussions her choice could have, or how she would respond to orders from the court. She also couldn’t say whether she’d remain in office or resign if the Supreme Court’s decision is signed into law. She did, however, admit that feedback within the community has been divided.
“I’ve heard both positive and negative comments from many people,” she said, later on in the conversation stating she’d “have to think about that” when asked what her feelings are with regards to those citizens of Irion County opposed to her decision.
Contempt of Court
Irion County Sheriff W.A. Estes leaned back in his chair and thought for a moment before offering his opinion, gnawing on a toothpick poking out of his right cheek and thoughtfully selecting the right words.
“There are two types of law,” he said, speaking slowly, “what they call case law and actual penal code law. The penal code law is pretty set and dry. I mean, it was created in the legislature and voted on and passed. This deal [on same sex-marriage], that was what I consider case law, because a judge just gave a ruling on it. So, do we make arrests on case law? Not unless a judge orders me to.”
Motioning to several copies of the Texas Penal Code sitting on a bookshelf, Estes described his position as a peace officer as enforcing laws passed by Texas legislature.
The Texas Family Code section that pertains to obtaining a marriage license was last updated on April 17, 1997 by the 75th Legislature. That section provides that, “(a) A man and a woman desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk of any county of this state,” and, “(b) A license may not be issued for the marriage of persons of the same sex.”
Although Texas law is clear on its definition of who is eligible to wed, there is no penalty for clerks or judges who issue licenses or marry couples of the same sex, nor has there been since the law went into effect 18 years ago.
The Texas legislature meets every two years and just concluded its 84th session on June 1, 25 days before the Supreme Court issued its ruling.
“The Supreme Court, to me that’s an opinion, because they’re not able to create law, they interpret law” Estes said. “Congress is the only one who can create laws. So it kind of puts me in a predicament, don’t it? Is it case law? How do we enforce it? I don’t know. There’s enough in that penal code that is actually written down [in] black and white that we can worry about enforcing.”
Estes’ stance seemed to echo that of Supreme Court Chief Justice John G. Roberts, who recognized the strong arguments made by the attorneys for the petitioners in his lengthy dissent, but firmly stated the court’s position as an interpreter of law, rather than that of a lawmaker.
“…this Court is not a legislature,” Roberts wrote. “Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’”
Chief Justice Roberts continued to say that the right to marry does not include a requirement that a state change its definition of marriage, and contended that the Constitution does not enact any one theory thereof, rather that the people are free to define marriage for themselves.
“Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage,” he wrote. “Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.”
Despite his position that the Supreme Court is not tasked with lawmaking, Roberts recognizes the authority of the court’s decisions, paying homage to the Supremacy Clause of the United States Constitution that names the Constitution as the law of the land.
“This Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding,” the clause reads.
The clause continues to state that members of state legislatures and judicial officers are bound to support the Constitution.
When the court passed down its opinion on June 26, the majority ruled that the 14th Amendment to the Constitution extends marriage rights to same-sex couples via the Due Process Clause, which says that no state shall “deprive any person of life, liberty, or property, without due process of law”.
The Supreme Court’s interpretation, as expressed in the majority opinion, names most rights of the Bill of Rights as being protected by the Due Process Clause.
“In addition, these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs,” the opinion states.
Although the court’s decision effectively makes its majority opinion the supreme law of the land by interpreting the meaning of the 14th Amendment to the Constitution, the repercussions for violating the law remain unclear at a local level.
If issued an order for the arrest of the Irion County Clerk by a judge, he would comply, Irion County’s Sheriff said, however without one he cannot act even if Criner denies a same-sex couple a marriage license in his presence. The charge, he said, would likely be contempt of court.
“On a deal like that on case law or anything, I would have to be directed by a judge,” Estes said. “The penal code’s very specific on what all you can arrest without a warrant, because there are some crimes that you don’t even get to make an arrest that’s committed in your presence. You have to actually go get the warrant before you can arrest them, even though you witnessed them doing that.”
While they may not be arrested, Estes noted that clerks refusing to issue licenses to same-sex couples could face litigation, as witnessed in lawsuits that have sprung up in the country on the issue. Although that litigation has the potential to drain a county's coffers, Attorney General Ken Paxton is still encouraging clerks to stand up and say no.
“It is important to note that any clerk who wishes to defend their religious objections and who chooses not to issue licenses may well face litigation and/or a fine. But, 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," he wrote in a recent press release.
Estes said that he personally does not have an opinion on the issue of same-sex marriage, stating that it hasn’t been an issue that he has had to confront. He also wouldn’t say whether he agrees with Criner’s decision to defy the law as laid out by the U.S. Supreme Court.
“You’ve got to respect somebody that will go into a fight expecting to lose,” he offered. “Because I really think that she expects that this will be upheld.”
It Is What It Is
While the sheriff may admire or respect Criner for standing up for what she believes in, the general consensus among locals was that same-sex marriage is not the biggest issue at hand.
Michael Gottberg is from North Dakota and has lived in Mertzon for about six months. The CO2 detector clipped to his shirt gave away his reasons for moving so far away from his home as work related. Even though he is not native to the area, he said same-sex marriage in Irion County does not affect him personally, and was kind enough to share his opinion on the matter.
“I believe the state should get together and work out some sort of compromise where they would call it something else, like a union,” Gottberg said. “That way, you aren’t encroaching on another person’s or group's beliefs or however you want to look at it, and yet, at the same time, getting exactly what you’re asking for with the legalities of it. I don’t believe you need to be fighting with the federal government over it either. If they had their own religion, they could do whatever they wanted. To me, it feels like a discriminatory action towards the Christian religion.”
Gottberg says that while he believes a marriage is defined in the Bible as a man and women joined in Holy union, he personally has no problem with how others choose to live their lives: as a Christian, judgment is not up to him or others, but the man upstairs.
Inside a busy Mertzon convenience store, the two clerks behind the counter had more open views.
“It’s not hurting me or my family, and as far as I know, it’s not hurting anyone else,” said Patti O’Brien, the elder clerk of 31 years. “If they want to get married, so be it, let them, it’s their right. I don’t have a problem with it, and if someone denied me my right to marry, I would be [livid].”
The younger clerk, Daniel Sorrells, who is 18, agreed with O’Brien.
“There are a lot more open people nowadays as far as gays and lesbians than what it used to be,” Sorrells said. “So, if they have the right to do something, just let them do it. It is what it is.”
Sorrells added that the people of Mertzon are set in their ways, passing down their values from generation to generation. To most, he said, it doesn’t matter much what the law is, they will continue to carry on in the way they have been for years, unaffected by federal and state laws.
Down the road from the worn convenience store stands a quaint café with a red painted door that was welcoming in its evening crowd for dinner.
Restaurant patron and a Mertzon native Paula Starche was among those entering the café. Starche’s father, Monte Noelke, is the namesake of the local library. She now lives close to Austin, and moved away from the rural community fresh out of high school. She said that growing up in Mertzon around 1968 was a lot different, but that even then she had homosexual friends that grew up alongside her, and was unaware that the county clerk in her hometown had decided to take such a defiant stance on the issue.
“I did have gay friends then," she said in reference to her childhood. "I support same-sex marriages. I think things happen incrementally and it doesn’t surprise me that some people and counties might take longer. Does it surprise me? It wouldn’t surprise me for any rural county in Texas. My personal opinion is that it was a good discussion and that people in general [have moved] in the direction of supporting it.”
An Irion County resident accompanying Starche echoed her sentiment, adding, “If you are in love, it’s all that matters, and everyone deserves to be loved.”
*Amanda Henson contributed to this report.