Don’t expect the Harris County Clerk to be ready for the SCOTUS same sex marriage ruling

The Press follows up on a question that we have examined before.

[Harris County Clerk Stan] Stanart isn’t planning on staying open later or doing anything to prepare to handle an influx of same-sex couples should the Supremes decide in favor of gay marriage, and he doesn’t seem concerned about getting the right application forms ahead of time from the state.

Yep, that’s right, should the Supremes rule in favor of gay marriage this month – and the fact that Justice Anthony Kennedy, the resident swing vote on the court, has written virtually every opinion the court has issued on gay rights in the past decade, and has voted in favor of gay rights consistently, implies that the court will find in favor of same-sex marriage – couples who wish to apply in Harris County will still have the flimsy but challenging conundrum of a paperwork problem standing between them and that marriage license.

Why? Well, to apply for a marriage license in Harris County couples have to go down to the any of the ten Harris County Clerk’s offices, pay $72 and fill out an application form. The application form is actually created by state officials and is printed from an online site, according to Stanart. The application form has a space for the name, social security number, address and other details for one female applicant and one male applicant — pretty much the only detail will present a problem until the state changes the forms.

[…]

“I’m going to have to follow whatever the state attorney general’s guidance is. They’re destroying an institution, the institution of marriage, but I’ll follow what the current law of the land is,” he says.

Still, Stanart admits that it should be relatively easy for state officials to fix the forms since the state issues the forms online. (Dallas County is the only county that lets couples fill out their applications online, but every county, including Harris, has couples fill out the same application.) “The forms come from the state and I’d wait for the state to change the forms. I’m sure they’d make any changes necessary and we would use their forms,” Stanart says. “They’re electronic and we’d just print them out.”

Don’t expect Stanart to make the process any easier in the event of a gay rights-affirming SCOTUS ruling. Event though Stanart acknowledges that it should be a fairly simple adjustment to fix the application forms – seriously, all you have to do is delete two words, “male” and “female” – it’s not an adjustment he’ll be making.

See here for the background. To be as fair as I can be to Stanart, most other counties are taking a wait-for-the-state-to-update-its-form approach as well, including Dallas and El Paso. I applaud Travis and Bexar Counties’ initiative – honestly, theirs is the only truly correct response, when you get right down to it – but I cannot believe the state will go along with it. The potential is there for folks who get married in those counties right out of the gate to wind up with licenses that the state refuses to recognize, forcing them to go through the process a second time. I hate to be a wet blanket, because this should be an opportunity for great joy and celebration, but if you ask me, I’d counsel patience.

In fact, someone did ask me. This is an edited version of the response I sent her:

Assuming SCOTUS does what we all think they will do, my best guess for what happens next is as follows:

– Travis and Bexar Counties announce they are open for marrying couples, with their own corrected version of the state’s marriage licence application form. Some other counties may follow, but most others look to the Attorney General for guidance.

– AG Paxton issues an order saying any license application that has been modified by the local County Clerk is null and void, and only the official state form will be accepted. How long that is expected to take and whether there will be any active resistance at that level is unclear to me at this time.

– Not wanting to wait until these guys decide to get their asses in gear, some group of plaintiffs petition a federal judge (probably the San Antonio judge who issued the original ruling, whose name escapes me) to order Paxton and the Vital Statistics Unit to get on it or else. This may wind up before the FIfth Circuit, with the basic arguments being “you can’t rush these things” and “oh yes you can, it’s a stupid simple fix”.

– Just for the lulz, the Fifth Circuit may issue its ruling on the appeal of the original suit, which may or may not throw a wrench into the works. Or they may throw up their hands and say “welp, the Supremes took us off the hook here, kthxbai”.

– Other disgruntled parties may try some other last-ditch rear-guard actions. I have no idea what form any of that may take or if it may have any effect at all besides making us all roll our eyes so hard.

– Eventually, sanity prevails and everyone who wants to gets hitched.

I really have no idea how long any of this may take. I could see it all happening within about a ten-day window, but my instinct is to be pessimistic. This is the final line in the sand.

All the counties within 100 miles of Harris have Republican County Clerks. My guess is they will generally follow the same script as Stan Stanart, which is “we will do what the law says we have to do even if we think y’all are a bunch of icky heathens”. There’s always the possibility someone will try to fall on his sword, but I expect that will be an outlier. I don’t expect any of them to do anything differently until Paxton throws in the towel and the state issues updated forms.

I would love to be wrong and to hear Paxton and Abbott and the rest accept the decision right off, with the state working quickly to produce an updated form, but I ain’t counting on it. Not to put too fine a point on it, but if that were what they were planning to do, there would already be an updated form ready to go. Plan for chaos, hope for the best, and be prepared to wait, that’s my advice.

UPDATE: The Dallas County Clerk has reversed course and will follow the examples of Travis and Bexar Counties.

Related Posts:

• Here come the lawyers
• Remember, don’t rush to get married in Harris County just yet
• SCOTUS rules for marriage equality