Bench Memos

Texas Attorney General To Be Grilled Over Religious Liberty Advice

Critics contend that opinion regarding objections to Obergefell was unethical.

Both Ed Whelan (here) and I (here) have previously written about the unfounded backlash to Texas attorney general Ken Paxton’s advisory opinion in the wake of the Supreme Court’s Obergefell v. Hodges decision last year. Texas lieutenant governor Dan Patrick asked the attorney general to opine whether, and to what extent, government officials involved in the processing of marriage licenses and conducting wedding ceremonies could object, on religious grounds, from participating in those activities for same-sex couples. Attorney General Paxton issued a lengthy, thorough opinion that canvassed the relevant legal authorities (both constitutional and statutory) on the subject of an employer’s obligation to accommodate the religious beliefs of employees.

The opinion ultimately concluded that the application of the legal principles in any particular case was very fact-specific, but that — in general — a county clerk or similar official with objections to same-sex marriage should delegate the objectionable responsibilities to colleagues not sharing those objections. The opinion ended with these words: “Importantly, the strength of any particular religious-accommodation claim depends on the particular facts of each case.” The opinion did not advocate defiance of the Obergefell decision.

Nevertheless, critics of the attorney general promptly filed a disciplinary complaint with the State Bar, charging that his advisory opinion constituted a violation of the rules of professional responsibility to which he is bound as an attorney. Specifically, Paxton’s critics accused him of not defending the Constitution and laws of the United States. The State Bar correctly dismissed the politically-inspired complaint, but the critics appealed the dismissal to the “Board of Disciplinary Appeals,” a panel of attorneys appointed by the Texas Supreme Court. Last week, this little-known board overturned the dismissal and ordered the State Bar to proceed with an investigation of the complaint.

This is an outrageous and deeply-disturbing development. Paxton merely acknowledged that long-standing existing law could apply to government employees who had sincere religious objections to facilitating the marriage of same-sex couples, and that — depending on the circumstances — accommodation might be required. Apparently, proponents of same-sex marriage are so zealous in the pursuit of their goal that any response short of abject capitulation is unacceptable. Obergefell demands our unquestioned loyalty and respect. All objections, even those based on legitimate religious beliefs, must yield.

The Texas Supreme Court, who appointed the Board of Disciplinary Appeals, may have to correct their misguided decision.