Bench Memos

Law & the Courts

Frivolous Attacks on Texas AG Ken Paxton

In the immediate aftermath of the Court’s ruling in Obergefell v. Hodges, Texas attorney general Ken Paxton provided an advisory opinion to Texas lieutenant governor Dan Patrick concerning the religious-liberty rights of county clerks (and their employees), justices of the peace, and judges in connection with same-sex marriage licenses and ceremonies.

Paxton determines that the “newly minted federal constitutional right to same-sex marriage can and should peaceably coexist with longstanding constitutional and statutory rights, including the rights to free exercise of religion and freedom of speech.” First addressing the rights of county clerks and their employees to abstain from taking part in the issuance of a same-sex marriage license, Paxton modestly concludes that “the strength of any claim under employment laws or the Religious Freedom Restoration Acts depends on the particular facts of each case.” (Among other things, his opinion reasonably indicates, the accommodation of religious objections may be more necessary when there are other employees in the office who will perform the task.) Ditto for justices of the peace and judges who would like to abstain from conducting same-sex marriage ceremonies: “the strength of any such claim depends on the particular facts.”

In yet further evidence of the mendacious intolerance of the Left, some 150 Texas attorneys (according to this article) have signed a letter threatening to file a complaint with the State Bar of Texas over Paxton’s opinion. The letter ridiculously misrepresents Paxton’s opinion as an “edict to encourage Texas clerks to violate a direct ruling of the United State Supreme Court” and claims that Paxton is thus violating his duty to uphold the U.S. Constitution. According to the article, a former state legislator has already filed a State Bar complaint against Paxton on the same baseless ground. (The article itself also falsely states that Paxton’s opinion “tell[s] Texas clerks they did not have to issue marriage licenses to same-sex couples if it violated their religious beliefs.”)

The pursuit of same-sex marriage through the courts rather than the democratic processes has trampled or corrupted virtually every tenet of the rule of law. It’s beyond parody that the same movement that encouraged state attorneys general to violate their ethical duties by failing to defend state marriage laws would now complain about Paxton’s careful and nuanced advice to the state lieutenant governor.

(H/t Mark Pulliam.)


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