Clerks who defy the Supreme Court are acting in a personal capacity

It has been interesting to watch the responses to the ruling by the Supreme Court that makes gay marriage legal in all 50 states. Clerks are a quittin'. Senator Ted Cruz says to ignore it. Some businesses are protesting and continue discriminating on religious grounds. Never mind that the the opinion was written by a conservative judge with concurrence from four of the liberal judges at the Supreme Court.

Setting aside all the hubris, I want to focus on one particular aspect of the fallout that few have discussed: personal liability. In Texas, there is a court case brewing over the refusal of the clerk to issue a marriage license for a same sex couple after the Supreme Court ruling:

In Texas, Hood County Clerk Katie Lang had refused to issue marriage licenses to same-sex couples for well over a week after the Supreme Court’s ruling in Obergefell v. Hodges. The conservative group Texas Values rallied in her defense and even the Family Research Council propped up her discriminatory cause. On Monday, however, Lang folded, and she may now have to pay the price for waiting.

What is that price? Attorney's fees for a lawsuit that never had to happen. Now the clerk faces the real possibility of being made an example for others to beware of should county clerks refuse to follow the law. The court, in its discretion may require the state, or the clerk, or both, to pay attorney's fees.

The relevant law is 42 USC 1988, regarding enforcement of civil rights. The law at subsection (b) notes that the court has discretion to apply the law as follows:

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92–318 [20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction. (emphasis mine)

This section clearly acknowledges a well known, long accepted principle in law: actions taken by a government official that are not supported by the law cannot be seen in an official capacity and are considered to be actions in a personal capacity. In other words, a county clerk may not perform or omit an act without authority and be liable in an official capacity. Such action exposes the actor to personal liability, which could amount to a great sum of money, perhaps far greater than a year of salary.

For any clerk who resigned in respect of their refusal to issue a license to a gay couple, they may know well the consequences of ignoring the Supreme Court without authority. So they acted on their conscience while saving their bank account, house and any securities they might happen to own. As long as the government hires clerks that will adhere to the oath they take when they take office, that is a positive trend.

This ruling is important for a number of reasons well beyond the gay community. In decades past, the Supreme Court has ruled unconstitutional laws against interracial marriage, recognizing that the right of marriage applies to anyone, regardless of race or gender. It is a right protected by the 14th Amendment and is not subject to the petty whims of fundamentalists of any religion.

The right of marriage needs no religion to support it or define it. The only thing required to exercise the right of marriage is unwavering, devoted love. All that the Supreme Court is saying is that regardless of your religion, you must recognize that marriage just like any other marriage.

If Clerk Lang is saddled with personal liability for attorney's fees, then let that be a lesson to anyone else who wishes to challenge the Supreme Court in a pretended official capacity.