The Texas Attorney General has responded to the “newly invented federal constitutional right to same-sex marriage” created by the “activist” U.S. Supreme Court by telling Texas officials “Texas must speak with one voice against this lawlessness.” He issued an opinion and said Texans must “act on multiple levels to further protect religious liberties for all Texans” and must “immediately do anything we can to help our County Clerks and public officials who now are forced with defending their religious beliefs against the Court’s ruling.”
In a statement obtained by Breitbart Texas, Texas Attorney General Ken Paxton stated that “the United States Supreme Court again ignored the text and spirit of the Constitution to manufacture a right that simply does not exist.”
Paxton continued, “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.”
The Attorney General called the majority opinion in Obergefell v. Hodges a “flawed ruling” and “flawed direction … on Constitutionality and applicable state laws.” He accused the five justices once again of “ignor[ing] the text and spirit of the Constitution to manufacture a right that simply does not exist.”
The top lawyer for Texas stated “Indeed, for those who respect the rule of law, this lawless ruling presents a fundamental dilemma: A ruling by the U.S. Supreme Court is considered the law of the land, but a judge-made edict that is not based in the law or the Constitution diminishes faith in our system of government and the rule of law.”
The Texas AG said he was issuing an AG opinion on how to respond to the SCOTUS decision because “Now hundreds of Texas public officials are seeking guidance on how to implement what amounts to a lawless decision by an activist Court while adhering both to their respective faiths and their responsibility to uphold and defend the U.S. Constitution.”
The conclusion that Paxton reached is that this newly created right to marry by non-same-sex couples “should peaceably coexist alongside longstanding constitutional and statutory rights, including the rights to free exercise of religion and speech.” It was his legal opinion that religious liberties are protected by state and federal constitutions and statutes.
The Texas Attorney General opinion includes “we find that although it fabricated a new constitutional right in 2015, the Supreme Court did not diminish, overrule, or call into question the First Amendment rights to free exercise of religion that formed the first freedom in the Bill of Rights in 1791.”
As it relates to specific government employees in Texas, it was the legal conclusion of the AG of Texas that county clerks and their employees “may allow accommodation of their religious objections to issuing same-sex marriage licenses.” He said that “[t]he strength of any such claim depends on the particular facts of each case.”
Texas’ top lawyer also concluded that justices of the peace and judges “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.” Again, he concluded, the strength of the claim is determined by the particular facts.
The Texas Attorney General acknowledged that “any clerk who wished to defend their religious objections and who chooses not to issue licenses may well face litigation and/or a fine.”
The Texas Family Code provides that county clerks that fail to comply with the marriage license statute are subject to a fine of up to $500.
The AG continued, “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.”
Although the Left is claiming that the religious and free speech liberties of Christians and others will not be infringed, we shall see if the intolerant “tolerant” Left will be satisfied with their recent victory at the U.S. Supreme Court.
We will see if they are satisfied to get a marriage license, or be married by a judge, whose religious beliefs are not violated by facilitating a non-traditional marriage.
A couple in Texas may obtain a marriage license from any county clerk in the state without regard to the county in which the marriage applicant resides.
We shall see if those who are hungry to “expose” those whose religious beliefs are not consistent with their beliefs about gay marriage, will “shop” counties to find county clerks to sue if they do not issue marriage licenses to same-sex couples.
Breitbart News recently reported that a judge in Oregon awarded a lesbian couple $135,000 for “emotional damages” in a lawsuit against a Christian couple who declined to provide a wedding cake to the same-sex couple in 2013. In their lawsuit, the two women claimed they felt “mentally raped” and listed 88 symptoms of emotional distress they experienced as a result of being refused a cake.
Breitbart Texas has also reported that municipalities, like Houston, Texas, have attempted to enact ordinances aimed to prevent discrimination against gays. Opponents have been concerned that business owners and others will be sued if they act in accordance with their religious beliefs.
The AG opinion states that under state law, a county clerk may delegate duties to deputy clerks, including issuing marriage licenses, and deputy clerks have the authority but not the mandatory duty to perform the acts of the county clerk.
Clerks and deputy clerks take the same oath of office to “preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.” Yet employees possess rights under state and federal law to be free from employment discrimination on the basis of religion. The AG opinion states “It would be curious indeed for an oath that ends with ‘so help me God’ to mandate that the oath-taker set aside those very beliefs.”
State and federal employment laws allow deputy clerks and other employees to seek reasonable accommodation for a religious objection. Under the Texas Religious Freedom Restoration Act, deputy clerks and other employees may be able to sue because forcing the employee to issue same-sex marriage licenses over their religious objections is not the government’s least restrictive means of ensuring a marriage license is issued.
Article 1, section 6, of the Texas Constitution provides “No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.”
A clerk who decides to issue no licenses at all, said the AG, may find a tension with the requirement under the Texas Family Code that a clerk “shall” issue marriage licenses for conforming applications. The AG stated that a court would have to balance this statutory duty against a clerk’s constitutional rights under the RFRA, and the right of an applicant to get a marriage license. The AG said this “factually specific inquiry” was “beyond the scope of what this opinion can answer.”
As it relates to judges, retired judges, priests, ministers, or Jewish rabbis, “These individuals are permitted to perform any marriage ceremony, but nothing in Texas law requires them to do so,” concluded the Texas AG. (emphasis in the AG opinion).
The AG opinion continues, “The only statutory restriction on their authority is that they are ‘prohibited from discriminating on the basis of race, religion, or national origin against an applicant who is otherwise competent to be married,” citing the Texas Family Code.
“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.”
Under the RFRA, these judicial officers may claim that the government forcing them to perform these ceremonies when others can conduct these weddings, is not the least restrictive means of the government ensuring that the ceremonies occur, assuming that is a compelling governmental interest. The AG said that as in the case of county clerks and their subordinates, the strength of any religious objection claim depends on the particular facts.
As reported by Breitbart Texas, Texas Governor Greg Abbott issued a response on the day of the Obergefell opinion saying:
I expect all agencies under my direction to prioritize compliance with the First Amendment to the United States Constitution, Article I of the Texas Constitution, and the Texas Religious Freedom Restoration Act. All state agency heads should ensure that no one acting on behalf of their agency takes any adverse action against any person, as defined in Chapter 311 of the Texas Government Code, on account of the person’s act or refusal to act that is substantially motivated by sincere religious belief. This order applies to any agency decision, including but not limited to granting or denying benefits, managing agency employees, entering or enforcing agency contracts, licensing and permitting decisions, or enforcing state laws and regulations.
Whether those left-of-center will force all others to believe or profess to believe what they believe, 0r otherwise face fines or lawsuits, will show what the Left really thinks about liberty and the freedom we all have as Americans. It will expose any hypocrisy, and answer questions of whether those who obtained this recent victory really believe freedoms are available only to those who think in accordance with what they believe, not only about love and civil liberties related to marriage, but to all our God-given rights as Americans.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served the state of Texas as a prosecutor and associate family court judge. Follow her on Twitter@LanaShadwick2
Texas AG Opinion on Gay Marriage Ruling