Patterico's Pontifications

6/28/2015

Texas Pushes Back Against Gay Marriage Decision

Filed under: General — Dana @ 8:21 pm

[guest post by Dana]

Leave it to Texas!

County clerks can refuse to issue marriage licenses to same-sex couples based on religious objections to gay marriage, Texas Attorney General Ken Paxton said Sunday.

Paxton noted that clerks who refuse to issue licenses can expect to be sued, but added that “numerous lawyers stand ready to assist clerks defending their religious beliefs,” in many cases without charge.

Paxton said Friday’s “flawed” opinion from the U.S. Supreme Court, which overturned bans against same-sex marriage in Texas and other states, placed religious people in conflict between following their faith and the U.S. Constitution.

In a sharply worded rebuke of the Court and its judicial activism, Paxton expressed an even greater resolve to protect religious freedoms:

“Friday, the United States Supreme Court again ignored the text and spirit of the Constitution to manufacture a right that simply does not exist. In so doing, the court weakened itself and weakened the rule of law, but did nothing to weaken our resolve to protect religious liberty and return to democratic self-government in the face of judicial activists attempting to tell us how to live.”

–Dana

45 Responses to “Texas Pushes Back Against Gay Marriage Decision”

  1. Hello.

    Dana (86e864)

  2. The basis for his opinion:

    Paxton based his argument on the so-called “undue burden” concept, which says services can be denied if they can be received elsewhere without subjecting the recipient to excessive hardship. It is the same concept cited in Texas officials’ recent push to further restrict access to abortion.

    “So long as other authorized individuals are willing to conduct same-sex wedding ceremonies, these statutory provisions demonstrate the practical reality that a refusal by a religiously objecting justice of the peaceor judge cannot prevent a same-sex couple from participating in a wedding ceremony contemplated by state law,” wrote Paxton.

    Dana (86e864)

  3. I suspect that in that situation, the office will be required to have a different employee issue the license. The court will not allow Texas counties to deny licenses to eligible applicants.

    aunursa (be35b6)

  4. what is the court going to do, send Kennedy down there to strong arm the clerk?

    redc1c4 (589173)

  5. Additional context.

    felipe (56556d)

  6. No, aunursa, Texas Clerks are not free to do as they wish, but rather, are still bound by the laws of Texas.

    felipe (56556d)

  7. A county clerk might not be forced to issue a license to a same-sex couple in violation of his religious beliefs. But each county is going to be required to issue such licenses. The state of Texas will be issuing such licenses in every county that issues marriage licenses. It will happen, sooner or later.

    aunursa (be35b6)

  8. Last April, Alabama Chief Justice Roy Moore ordered the state’s probate judges to not issue marriage licenses to same-sex couples. I believe that Moore and Texas AG Ken Paxton are (knowingly or not) exercising what is called the Doctrine of Lesser Magistrates. Matthew Trewhella, the author of The Doctrine of the Lesser Magistrates: A Proper Response to Tyranny and A Repudiation of Unlimited Obedience to Civil Government, explains the doctrine in an excellent post at Godfather Politics:
    http://godfatherpolitics.com/23109/the-duty-of-lower-magistrates-to-face-down-the-tyranny-of-same-sex-marriage/

    I quote just the definition of the doctrine below, but Trewhella’s post explains its application to current issues and the important role of the people in exercising the doctrine. Please do read the entire post.

    “The lesser magistrate doctrine states that when a higher-ranking civil authority makes unjust or immoral laws, policies, or court opinions, the lower or lesser-ranking civil authority has the God-given right and duty not to obey the higher authority. If necessary, the lower authority may even actively resist the superior authority. …
    The interposition of the lower magistrates is not subjective or lawless. There are only three reasons for open defiance to the higher civil authority. First, they are to oppose and resist any laws or edicts from the higher authority that contravene — violate, oppose, or contradict — the law or Word of God. Second, they are to protect the person and property of those who reside within their jurisdiction from any unjust or immoral laws or actions by the higher authority. Third, they are not to implement any laws or decrees made by the higher authority that violate the U.S. Constitution or their state constitution, and if necessary, resist them.
    The interposition of the lower civil authority is not anarchy or chaos. Rather, when the higher authority makes laws, policies, or court opinions which accomplish any of these three reasons, it is they who have acted as anarchists; it is they who have brought chaos. The interposition of the lower magistrates acts to restore order.”

    pa (031813)

  9. lots of luck but there are plenty of people in Texas who would not have any problems in issuing marriage licenses to same-sex couples.

    OT:
    If there are tax and law advantages to being married, seminaries and the like should take advantage of the situation and have the students sharing rooms get married. If marriage is being made a mockery, go all the way.

    seeRpea (0cf003)

  10. what is the court going to do, send Kennedy down there to strong arm the clerk?

    Considering how loony some of those liberal Supreme Court jurists are, they may instead recommend Kennedy go to Texas and offer to give a Monica-Lewkinsky to the defiant clerks.

    (There was a time when that quip would have been 100% pure sarcasm.)

    Mark (a11af2)

  11. None of that matters. The federal government is not going to allow Texas counties to deny marriage licenses to same-sex couples. The state of Texas and every Texas county will be forced to comply. State and county officials can fight it, but they’ll only delay the inevitable.

    aunursa (be35b6)

  12. I understand your point. But I cannot resist saying:

    “None of that matters.” Famous last words.

    felipe (56556d)

  13. God Bless Texas

    mg (31009b)

  14. or Alabama

    redc1c4 (4db2c8)

  15. and, if you want the feds to use force, you may want to re-think your enthusiasm.

    redc1c4 (4db2c8)

  16. The federal government is not going to allow Texas counties to deny marriage licenses to same-sex couples. The state of Texas and every Texas county will be forced to comply. State and county officials can fight it, but they’ll only delay the inevitable.

    The same way the federal government will not allow new Jersey state troopers from arresting travelerrs for possessing handguns?

    Michael Ejercito (d9a893)

  17. the Catholic Church isn’t buying into it either.

    redc1c4 (589173)

  18. You will recall, of late, how gay couples, having been oppressed, suppressed, repressed and depressed by evil Christian fundies manage to find to do their Big Day…evil Christian fundies. Despite there being gays running enterprises which could use the business. I wonder if there will be clerk or county shopping for the same reason, whatever that is.

    Richard Aubrey (f6d8de)

  19. It will be Texans who start the fight to save the 2nd Amendment.
    Bt the way, if a team republican wants to win in 2016 they better start yapping about the 2nd amendment.
    100 % 2016 winning issue.

    mg (31009b)

  20. I would have had more respect for Paxton and Abbott if they had said, we will not enforce, similar to how Lincoln refused to enforce Dred Scott. Or , Your court has made their ruling Mr. president, now how are you going to enforce it?

    sdharms (c7dded)

  21. you gotta push em back push em back WAAAAAAAAY back you gotta push them homos back

    happyfeet (7b1a9e)

  22. 16.and, if you want the feds to use force, you may want to re-think your enthusiasm.
    redc1c4 (4db2c8) — 6/28/2015 @ 10:48 pm

    I’m not saying what I WANT to happen. I’m saying what WILL happen.

    aunursa (be35b6)

  23. Texas obviously needs to change their State motto. What’s Latin for “Come here and say that to my face, you p***y”?

    PCachu (5376c0)

  24. My understanding is the AG opinion is focused on individual clerks and judges with religious objections to participating in SSM. It advises that there should be protection for their religious concerns as long as there are other clerks to issue the license and other officials or clergy to conduct the ceremony. This won’t be much use to small conservative counties with one or two clerk and one judge, but we’ll cross that bridge when we get to it. In addition, perhaps AG Paxton is anticipating the next lawsuit against the government, and this is a way to identify the plaintiffs.

    DRJ (1dff03)

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    Audelia (2085e6)

  26. Here is a link to Paxton’s press release, and it has a link to his Texas AG’s opinion.

    DRJ (1dff03)

  27. The AG opinion says that, as a result of the Supreme Court decision legalizing SSM, there are now tensions between that law and individual religious beliefs. He opines that the answer in each case is based on the facts of the individual’s religious objection (such as “How sincerely held is the religious belief?”), and whether there are other options (such as whether the SSM can be performed by someone other than the county judge or JP).

    Thus, IMO:

    The opinion makes it clear that the SSM license should be granted if there is a clerk or deputy clerk who does not assert a religious objection. I think the opinion actually discourages clerks from refusing to issue licenses, because it warns them of fines and sanctions, and the need to litigate their personal religious views. Not many people will choose that option, even with a pro bono attorney.

    The concern of the opinion seems to be resolving the inevitable cases that will arise where there is conflict between the SSM right and religion. This is more likely to come up in the context of officiating the marriage than issuing the license. It could be a repeat of the bakery, florist, etc., cases, which seems likely and predictable. Paxton is right to anticipate that.

    To the extent Ed Morrissey at Hot Air is claiming this is Paxton saying SSM isn’t the law — as opposed to what he actually says, that it isn’t good law — then I think Morrissey is wrong. He is often wrong.

    DRJ (1dff03)

  28. This won’t be much use to small conservative counties with one or two clerk and one judge, but we’ll cross that bridge when we get to it. In addition, perhaps AG Paxton is anticipating the next lawsuit against the government, and this is a way to identify the plaintiffs.

    The argument there is, ironically, a use of the First Amendment against the clerk or judge who refuses–that they would be using their governmental power to impose their religious belief on others.

    As a practical matter, any lawsuit in that sort of situation would be obviously vexatious and persecution. If Ken and Steve, or Alice and Mary, were comfortable living openly as a couple in an overwhelmingly conservative locale, they could easily take a weekend trip to Austin or somewhere else, have a wedding there, and come back as officially married as if they stayed home to do it. They wouldn’t need to harass the local officialdom unless they wanted to harass them.

    kishnevi (870883)

  29. It may not happen, kishnevi. I think West Texans are often libertarian on social issues, and would be more likely to resign their post than litigate. I’m not sure about East Texas, though.

    DRJ (1dff03)

  30. there might also be issues in South and far West Texas where most of the officials are Hispanic. That could get interesting.

    DRJ (1dff03)

  31. As for East Texas, this from a man who grew in West Texas, and left for the, er, gayer pastures of New York.

    My dad hated the old Confederacy. He was no liberal and agreed with the idea of states’ rights, but he agreed with Sam Houston on the issue of the Noble Cause. My dad like Houston believed that Texas should have stayed in the Union, that slavery and supremacy were not worth the price of treason. He never thought that the Confederate Cause was noble. For this reason, he hated having to travel in East Texas where the joke is that Texas was once part of the original Confederacy and most of East Texas still is. We kept a photo of Lincoln hanging in our house in dear old Texas.

    kishnevi (870883)

  32. There’s a reason they say Texas is like a whole other country. It’s actually 4, maybe more.

    In other news, the Supreme Court is going to rehear the affirmative action case of Fisher vs UT. UT was at the beginning of academic/race cases since Sweatt and maybe now it can provide closure with Fisher. This is a big loss for Powers, who was effectively forced to step down as President of UT this summer. I hope the interim President decides it’s time to change course.

    DRJ (1dff03)

  33. They wouldn’t need to harass the local officialdom unless they wanted to harass them.

    Kishnevi. That’s the point. It’s how gay couples end up trying to contract with evil Chrisitan fundies for weddings. They go shopping, so to speak.

    Richard Aubrey (f6d8de)

  34. DRJ – Ed and Jazz are consistently wrong.

    JD (3b5483)

  35. I like Allahpundit and Jazz, and Ed on religion, but Ed should stop writing about law. He’s hurting people with overwrought misinformation.

    DRJ (1dff03)

  36. I’m also glad Noah Rothman moved on.

    DRJ (1dff03)

  37. I have learned so much about Texas and Texans from reading this blog, and especially from your posts, DRJ. When we travel there on business or even visit a Texas city/area on vacation it is so hard to get a flavor for your massive and complex state. And there are many stereotypes to get beyond.

    elissa (dcd9c2)

  38. I can’t speak for East a Texas but, other than San Antonio, I don’t think Texas has a distinctive character. It’s pretty much whatever you want it to be. I think that’s why people describe it as welcoming and friendly when it’s really libertarian.

    DRJ (1dff03)

  39. Thanks for these informative posts, DRJ.

    Beldar (fa637a)

  40. You might email Ed, if you haven’t.

    Beldar (fa637a)

  41. Thanks for adding the press release, DRJ. I meant to last night.

    Dana (d85ff0)

  42. similar to how Lincoln refused to enforce Dred Scott.

    Um, what?

    Milhouse (a04cc3)

  43. and of course, the Court takes up Gosnell girl’s pompoms, putting the kibosh on the texas regulations of clinics,

    narciso (ee1f88)

  44. and of course, the Court takes up Gosnell girl’s pompoms, putting the kibosh on the texas regulations of clinics,

    No, it just stayed implementation of the new laws, pending its decision whether to grant cert.

    Milhouse (a04cc3)


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