Texas Attorney General Tells Clerks They Can Ignore The Constitution If They Want To

The Attorney General of Texas is responding to the Supreme Court's marriage ruling by telling Clerk's who issue marriage license that they are free to ignore the law.

constitution-preamble-gavel

Ken Paxton, who was elected Attorney General of Texas last November in the same election that saw his predecessor Greg Abbott elected Governor, is telling Clerks and Judges in the Lone Star State that they are free to ignore the Supreme Court of the United States if it conflicts with their religious beliefs:

AUSTIN – Texas Attorney General Ken Paxton on Sunday told clerks and judges in the Lone Star State their religious beliefs could enable them to flout the U.S. Supreme Court’s historic ruling legalizing same-sex marriage, while adding some may face litigation for violating gay cooCuple’s Constitutional rights.

“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,” Paxton said in a statement accompanying an opinion released Sunday.

“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 opinion – which Lt. Gov. Dan Patrick requested last week – comes just two days after the high court in an historic ruling struck down gay marriage bans in Texas and a dozen other states. Some county clerks here began immediately issuing licenses to same-sex couples, while many others said they would wait until the state updated its licensing form or until Paxton released guidance on how to proceed.

Paxton individually addressed two sets of people in his Sunday opinion: county clerks and their deputies, who issue licenses, and those who can perform marriages.

He said his office believed state religious freedom laws would allow clerks to refuse to issue marriage licenses to same-sex couples if they have sincerely held beliefs that prohibit them from doing so, and if there was someone else present – like a deputy – who would be willing to service the couple.

Judges and justices of the peace, however, should be able to refuse to marry these couples without finding an alternative, said Paxton, because there are others endowed with the ability to perform marriages, like members of the clergy.

“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 peace or judge cannot prevent a same-sex couple from participating in a wedding ceremony contemplated by state law,” wrote Paxton.

Importantly, he said the specifics of each individual refusal would be important, and that clerks in particular should be ready to face litigation or a fine for refusing to issue marriage licenses to same-sex couples.

The argument that individuals can refuse to service same-sex couples is based on the so-called “undue burden” concept, that says these services can be denied if they can be received elsewhere without subjecting the couple to excessive hardship.

The “undue burden” argument is the same one cited in Texas officials’ recent push to further restrict access to abortion.

Prior to the issuance of Paxton’s order, Texas Senator Ted Cruz, who previously served as the state’s Solicitor General and is now running for the Republican Presidential Nomination endorsed the idea of letting government employees get out of doing their jobs:

U.S. Sen. Ted Cruzon Saturday said county clerks in Texas should “absolutely” be able to opt out of issuing same-sex marriage licenses if they have religious objections.

“Ours is a country that was built by men and women fleeing religious oppression,” Cruz said in an interview with The Texas Tribune, “and you look at the foundation of this country — it was to seek out a new land where anyone of us could worship the Lord God Almighty with all of our hearts, minds and souls, without government getting in the way.”

The interview followed a major speech here in which he eviscerated the U.S. Supreme Court for its decision Friday to legalize gay marriage in all 50 states.

“We should respect diversity and tolerance,” Cruz added. “There is this liberal intolerance and fascism that seeks to force Bible-believing Christians to violate their faith, and I think it makes no sense.”

Cruz’s comments came a day after Lt. Gov. Dan Patrick asked Attorney General Ken Paxtonfor an opinion on whether county clerks and justices of the peace can refuse to issue same-sex marriage licenses or perform same-sex weddings. Texas already has a law in effect that protects clergy members who refuse to perform gay weddings due to their religious beliefs.

“There’s no right in society to force a Jewish rabbi to perform a Christian wedding ceremony,” Cruz said Saturday. “There’s no right in society to force a Muslim imam to perform a Jewish wedding ceremony.”

Cruz’s analogy is, of course, utterly absurd. The people we are talking about here are County and Town Clerk’s and Judges who are authorized to perform civil marriage ceremonies under Texas law. These are not clergy members and they are not being asked to perform a religious service. Indeed, they are not really being asked to endorse anything. The fact that they don’t think that they two people standing in front of them should be getting married is irrelevant regardless of whether we’re talking about two people of the same gender, a man and woman who are arguably “too young” to get married even though legally allowed to do so, or whatever characteristic there might be that leads a particular government functionary to think that they’d be better off not being married. They aren’t being asked to approve of the relationship. They aren’t being asked to sanctify in any conceivable sense of that word. They are being asked to do the job that they agreed to do when they became employees of the whatever government agency they work for. The idea that they can be selective about whom they provide a service to is absurd, and just a little bit offensive. Would Attorney General Paxton agree that someone who thought it was morally wrong for people of different races to get married should be allowed to exempt themselves the next time an interracial couple walks into the office? What about a Catholic who was divorced and is getting remarried, albeit in the Clerk’s Office rather than the Church? These people are, as I said, government functionaries not ministers. Either they are able to do their jobs for everyone equally, or they need to find another job.

On a broader level, the Supremacy Clause of the Constitution makes clear that the Constitution is one of the elements that make up the “supreme law of the land,” the others being laws passed by Congress and duly ratified treaties. The Court has ruled that laws barring same-sex couples from receiving a marriage license, presuming that the couple meets all of the other legal requirements that people seeking to get married must meet, are unconstitutional. This means that no government official at any level has the authority at any level has the authority to refuse to issue such a license. If they did, they would eventually find themselves under the order of a Federal Court and held in contempt if they refused to comply. The argument that Paxton makes here is not substantially different from the arguments made by states in the South who wanted to resist the Supreme Court’s ruling in Brown v. Board of Education and other Civil Rights are rulings. A position which eventually led to the Supreme Court’s 1958 ruling in Cooper v. Aaron that state and local officials were indeed bound by the Court’s rulings and which also rejected the long-discredited theories of nullification and interposition that had been raised by “state’s rights” advocates since the days of James C. Calhoun. Are people like Paxton really going to make it necessary for Federal Judges to rule on this issue again when the answer is blindingly obvious? That’s up to them.

This isn’t a new argument, of course. When New York State legalized same-sex marriage several years ago, some clerks in small towns in Upstate New York objected to providing services for same-sex couples, claiming that it would violate their religious beliefs. More recently, North Carolina’s legislature overrode the veto of conservative Republican Governor Pat McCrory to pass into a law a bill that allows state employees in the Tarheel State. Earlier in the year, Alabama Chief Justice Roy Moore was at the forefront of a similar effort to provide legal protection to Alabama state employees to allow them to avoid providing government services to same-sex couples. As we move past Friday’s decision and watch over the coming weeks and months as the Court’s holding is enforced across the country, I suspect that we will see actions and pronouncements similar to this from government officials in other states, principally in places such as Texas, Alabama, Mississippi, and Louisiana. While I have admittedly not researched the matter fully, it strikes me that legal opinions and laws that basically give government employees the right to discriminate may not pass legal muster. A same-sex couple who was denied service at a government office would, it seems to me, have a fairly good case against the agency and the employee that could lead to contempt charges against the employee if they refused to comply with a Court Order. In that context, the argument that doing the job they were hired to do somehow is a violation of their “religious liberty” doesn’t strike me as one that would get very far in a court of law. That issue, though will have to wait for another day. For now, we can expect to see more this as opponents of marriage equality fight rearguard actions.

Here’s Paxon’s opinion:

Texas AG Ken Paxton SSM Opinion by Doug Mataconis

FILED UNDER: Campaign 2016, Law and the Courts, US Politics, , , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. OzarkHillbilly says:

    A same-sex couple who was denied service at a government office would, it seems to me, have a fairly good case against the agency and the employee

    Question Doug: Could they sue for damages?

  2. legion says:

    So, can the AG pledge state resources to defend state employees from civil lawsuits resulting from their refusal to perform their jobs? Is that even legal?

  3. Gustopher says:

    I’ll just copy and paste my comment from the other thread on this…

    The Texas AG’s press release says:

    Justices of the peace and judges similarly retain religious freedoms, and may claim that the government cannot force them to conduct same-sex wedding ceremonies over their religious objections, when other authorized individuals have no objection, because it is not the least restrictive means of the government ensuring the ceremonies occur.

    Unless I am misreading that, it means the employee does have to be involved if they save religious objections, AND there is someone else who can do the work. That seems like a reasonable accommodation for someone’s religious beliefs.

    The rest of his press release is kind of ridiculous and over the top, but the part that has meaning seems pretty reasonable.

    It does make me want to roll my eyes about the drama queens on the far right who cannot separate civil marriage from religious marriage though.

  4. Robert in SF says:

    I wonder if there is another First Amendment objection that will come from this, such as someone claiming that making a Government Employee perform actions that they disagree with politically is somehow abridging their freedom of speech.

    If money (donations, expenditures) is considered speech, then direct actions would be more so, and the Government can’t make you speak in support of something you disagree with…that would be a supplement to the objection-based refusal in this scenario should the argument win that performing your paid job is not an act involving your religious beliefs.

    Of course, that Pandora’s Box would result in a sweep through the partisan atmosphere like wildfire, and political “extremists” would soon object to performing any act “supporting” legislation or court rulings with which they politically disagree. It would be a madhouse of administration.

  5. Scott says:

    These clerks and other Government officials are representing the government, not themselves. By imposing a religious exemption from their official duties, are they not, in fact, establishing a government religion?

  6. C. Clavin says:

    So-called christians used the bible, a work of fiction, to justify slavery too.
    They were dead wrong then. They are dead wrong now.

  7. walt mofett says:

    Sounds more like another Attorney Full Employment measure to me, FWIW, here in Alabama, another wrinkle, the relevant section of the Code (lets us findlaw) holds marriage licenses “may” be issued not “shall”. However, either way, new Telsas in parking lots seems likely.

  8. Davebo says:

    Ken Paxton, admitted stock fraud, is now telling his employees they don’t have to do their jobs if they don’t want to.

    But don’t worry, there’s supposedly a ton of attorneys out there ready to represent you for free.

    Embarrassing. If it weren’t for Roy Moore I’d be truly depressed.

  9. HarvardLaw92 says:

    Cue up the next front in this ongoing battle – litigation concerning the constitutionality of religious exemption laws, and possibly litigation seeking suspect class status for homosexuals.

    Over the longer term, I think that battle goes in favor of the gay folk, and that’s not a bad thing, but we’ll have some drama and discord in the interim.

  10. JohnMcC says:

    Pedantic as always. JOHN C. Calhoun.

  11. al-Ameda says:

    Wasn’t Rick Perry going to spearhead a secessionist movement in Texas? If so, why has he been reluctant to get that going?

  12. C. Clavin says:

    This is the Hobby Lobby theory of religious freedom…where religious freedom is not your right to freely practice your faith however you wish in your own private sphere, but the freedom to impose your religious beliefs upon others in the public sphere.
    It’s the right to deny service to anyone based on your prejudices, and now the right to change law based upon your bigoted views. And let’s be clear…the religious basis for all this is wafer thin. (pun intended)
    This is why it is critical that the next SCOTUS Justices be appointed by a Democrat. Any more Republican Justices and this country will be irreparably damaged.

  13. gVOR08 says:

    Short A. G. Abbott – I’d sure like to get a lot of points politically for opposing this, so I’m making a lot of noise about y’all breaking the law while doing my lawyerly best to avoid making any commitment to getting you out of the trouble you know you’ll get into.

  14. C. Clavin says:

    We recently found out that Bristol Palin had sex outside of the bonds of holy matrimony…do you think these so-called christians would be willing to grant a marriage license to that sinner?

  15. David in KC says:

    The only good thing about this is that instead of realizing they lost this one and moving on, they are digging in their heals keeping the issue alive going into the Presidential race. It keeps the crazy going, and will be an issue in the Republican primaries. So, do the “sane” viable candidates pander to get votes, pushing the issue into the actual election or take a hit on the fundie vote in the primaries?

  16. JohnMcC says:

    @C. Clavin: You don’t believe in immaculate conception?

  17. Gustopher says:

    @C. Clavin:

    This is the Hobby Lobby theory of religious freedom…where religious freedom is not your right to freely practice your faith however you wish in your own private sphere, but the freedom to impose your religious beliefs upon others in the public sphere.

    It really isn’t.

    AG Paxton seems to be saying that someone has to do the job, just that individual employees may not have to if there is someone else available. Marriage licenses will be granted, marriages will be performed. That’s pretty much the opposite of a government employee imposing their religious beliefs. This is closer to the Muslim employee not handling pork products.

    I think the employees who object are likely either idiots or bigots, but accommodating their religious beliefs, so long as it doesn’t affect the operations of the government, is harmless, proper and what we would expect in a tolerant society. (Even if their religious beliefs are a complete mish-mash and they cannot distinguish a civil and a religious ceremony… I don’t have to approve of them, tolerance comes from tolerating)

    Am I missing something about the AG’s opinion? To me it seems like a bombastically written surrender rather than some kind of defiance.

  18. Onward Christian Soldiers says:

    One VERY small silver lining is that this separates the fighters from the pretenders amongst conservative candidates.

    It tell us who is willing to fight.

    I’m glad that there’s some people who hare still willing to fight this.

    Normal marriage was the law of the land for 6,000 years but liberals didn’t accept that – they fought it.

    Deviant perverted marriage has been the law of the land for a few days. Why shouldn’t conservatives fight it. Those politicians who meekly accept this will receive no support from conservatives.

    Rubio hurt himself BADLY when he basically just said (paraphrased) oh well, the court has spoken, that’s the law.

    Cruz stood tall when he pledged to fight this abomination.

  19. C. Clavin says:

    @JohnMcC:
    Only if by immaculate conception you mean not getting any on the sheets.

  20. Todd says:

    @Gustopher: I’m reading it the same way as you are. As long as someone else is available to provide the service, then the only real objection is “hey, these guys shouldn’t be allowed to be assholes”. I don’t agree with government employees being able to claim a religious objection to avoid performing their duties. But as long as nobody is actually being stopped from obtaining a marriage license, I’m going to put this more in the “eye roll” rather than “serious concern” category.

  21. C. Clavin says:

    @Onward Christian Soldiers:

    Normal marriage was the law of the land for 6,000 years

    See – you’re just making shit up. Normal love? 600 years? What complete hooey.
    You can’t even begin to back that up…and yet you are willing to use that complete fiction as the basis for treating your fellow humans as second class citizens. Who the fxck are you to dictate to anyone who they can and cannot love?

  22. KM says:

    @Gustopher:

    Unless I am misreading that, it means the employee does have to be involved if they save religious objections, AND there is someone else who can do the work. That seems like a reasonable accommodation for someone’s religious beliefs.

    I have some real problems with this line of thought. Who is this someone else? What happens if there’s only one and they are on vacation? Where is this someone else? In the same building, the same town, the same district, the same state? How do you know who it is so you don’t waste your time at the courthouse? can you single an employee out like that without making it separate but equal in terms of lines and processing time? There needs to be some clarity and real-time definitions here; you can’t say that’s someone 100 miles away working only Mondays 9am-12 counts if everyone at your office objects.

    And what happens to that unlucky one? Their workload just jumped through the roof so Jim Bob over there can slack off in the name of Jesus! Do they get paid more for taking on substantially heavier workloads and increased availability? Why should they get screwed doing more paperwork because a holy roller erroneously thinks touching a paper means they’re intrinsically involved in the marriage?

    It’s not fair to the other clerks. If you are so dedicated to your faith that you cannot in good consciousness comply, then you should have the grace to not burden your coworkers and to not take tax-payer money falsely (fraud via not doing compensated work). Theft is a sin you know and theft of services counts Biblically even if they hem and haw about it. If you want this exemption, you should forfeit the money you would have been paid for that time willingly. Is filthy lucre worth their soul or are they just lip-servicing it to justify their finickiness?

  23. the Q says:

    So will the AG Paxton be so accommodating if one of his judges in Texas won’t impose the death sentence because he’s Catholic and “it infringes on my religious beliefs?:

    Will he line up pro bono lawyers to defend THAT Judges’ religious beliefs?

    Or what about the state border agent who allows in the illegals because his/her beliefs are grounded in the beatitudes and about charity for all etc. therefore the agent will never refuse entry to an impoverished immigre?

    Will he line up pro bono lawyers to defend those beliefs?

    I bet we all know the answer to those questions.

  24. HarvardLaw92 says:

    @C. Clavin:

    Don’t feed James P’s latest incarnation.

  25. stonetools says:

    It’s interesting to compare this post to James’ post on a moderate new way for conservatives.Denial ain’t just a river in Egypt. Looks like the South is preparing to go the full “massive resistance” on gay marriage.
    Concerning Hobby Lobby, seems like the parade of horribles is on the march.When the issue returns to the Supreme Court, will Kennedy side with the liberals this time? I’m betting we will find out before long.

  26. HarvardLaw92 says:

    @Gustopher:

    I think the employees who object are likely either idiots or bigots, but accommodating their religious beliefs, so long as it doesn’t affect the operations of the government, is harmless, proper and what we would expect in a tolerant society.

    And I wouldn’t necessarily disagree on some level – people going to apply for a marriage license are generally looking to obtain the license, not spoiling for a fight, so as long as said license is supplied to them, they’re generally satisfied. Getting married is stressful enough without adding in the burden of a created controversy. I suspect that the vast majority of people will live and let live.

    That having been said, an employee of the state acting ex cathedra is by definition not acting as an individual, so there is a legitimate case to be made that the simple act of refusal by such an individual violates equal protection in and of itself. Somebody will make that argument to a federal court. I’ll bet any amount of $$ on that proposition and win.

  27. Tony W says:

    This from the opponents of Sharia law….

  28. madjakk says:

    what goes around comes around.
    This administration ignored its obligation under the law to enforce the US border laws AND encouraged state AGs to ignore US laws they disagree with….you progs were good with that.

    Dont get your panties in a knot when your political opposition starts shooting back at your sacred cows, turnabout is fair play.

  29. legion says:

    @Onward Christian Soldiers: You…. might want to consider actually _reading_ the Bible one of these days. at least, if you’re gonna call yourself a “Christian”, that is.

  30. David M says:

    @madjakk:

    This administration ignored its obligation under the law to enforce the US border laws AND encouraged state AGs to ignore US laws they disagree with

    You might want to actually detail the issues you’re referring to here, my wingut to english translator needs to be updated apparently.

  31. C. Clavin says:

    @madjakk:
    Please provide a link to Obama indicating that anyone should deny the rights of anyone else.
    Also…border enforcement is far greater, by any metric, than at any other time.

  32. anjin-san says:

    I’m getting a little tired of public servants thinking that they can pick and choose which job duties they will execute. First the NYPD, now this. There must be a way to go after the paychecks and benefits of a public employee who refuses to do his/her job.

  33. C. Clavin says:

    @anjin-san:
    You have to remember – this is Texas – where almost 25% of the people don’t have health insurance and the state government thinks that’s a good thing.

  34. OzarkHillbilly says:

    @anjin-san: Including Obama on immigration enforcement? 2 words: Prosecutorial discretion. Just pointing out that sometimes if a cop lets a kid with a joint or 2 go they shouldn’t lose their job. I know what you are trying to say, but there could be consequences.

  35. Grewgills says:

    Onward Christian Soldiers your farce is too obvious. You might want to tone it down a notch or two to get back down into Poe territory.
    “Never go full retard.”

  36. dazedandconfused says:

    Nullification! At some point the line has to be drawn, and if not when the Roberts Court is trying to ram, slam, and cram their gay agenda down the throats of Texans, then when?? The whole reason for the 2nd amendment is to prevent this very thing from happening. To paraphrase a man who got things done: How many divisions does the Supreme Court have?

    They have all of them?

    Ah..well..in that case, the Texas national guard showed those Feds what’s what recently by preventing them from completing their plan to annex Texas under the cover of a military “excercise”. They want another lesson? Well…allllrriiighty then! Any Texan can whup at least six of those bastards each, I reckon.

  37. Tony W says:

    @dazedandconfused: See there @Onward CS? That’s how it’s done.

  38. steve says:

    For 6000 years the rule of the land was that you died from simple infections. Women were property. People thought the Sun circled the Earth, which was flat. Things change.

    Steve

  39. T says:

    @anjin-san:

    There must be a way to go after the paychecks and benefits of a public employee who refuses to do his/her job.

    i can only imagine the temper tantrum that would occur if you started taking away their pensions. just like spoiled rotten children, they cant handle getting their toys taken away when they fuck up.

  40. Barry says:

    @Gustopher: “This is closer to the Muslim employee not handling pork products.”

    No, because the employees in question are government employees, not private.

  41. Barry says:

    @Tony W: “This from the opponents of Sharia law…. ”

    They are only opponents in the sense of Pepsi vs. Coke.

  42. Mu says:

    This opens a whole new world: A Jewish clerk can refuse to file a divorce petition because the woman didn’t obtain a get from her husband first, the Muslim cop can walk away from a domestic violence situation because it’s only a woman’s word against that of a man, and the Buddhist IRS worker can refuse to work on a butcher’s tax return because everyone should be vegetarian. And as a Catholic I should get away with only showing up to work at 9 because I have to attend morning mass before breaking my fast. Not talking endless religious holidays.
    On the other hand, it will end unemployment as you have to have at least two if not three employees for every job to do it if one of your colleges refuses.

  43. dmhlt says:

    @OzarkHillbilly:
    Denied a marriage license, and I suspect they would have a strong stand to sue under 42 U.S. Code § 1983 – “Civil Action for Deprivation of Rights”

    https://www.law.cornell.edu/uscode/text/42/1983

  44. grumpy realist says:

    @Onward Christian Soldiers: Yes, that “normal marriage” so well typified by one man and several wives. (Israel, Egypt, Japan, Utah….)

    Or one woman and several husbands. (Nepal.)

    Or a man and a woman and several concubines (China, Israel, Sumer)

    Or a brother-sister pair (Pharaohs of Egypt)

    Or….

  45. grumpy realist says:

    @Mu: Yes, I pointed out to Rod Dreher and the rest of that crowd that if this takes off, they shouldn’t bitch when their hipster waitress refuses to serve them their piece of dead cow because she’s a vegan and such a task would interfere with her communion with Gaia.

    (Someone has GOT to come up with a vegan religion, convert a whole bunch of teenagers and college students, and train them to be PETA-obnoxious about it.)

  46. JohnMcC says:

    @grumpy realist: I believe I read some commenter here on a similar thread remark wisely that if religious freedom from settled laws are allowed the first to take advantage will be the fundamentalist Mormons. The Christians will have opened the door to polygamy themselves.

    So many ways for karma to getcha!