Ken Paxton’s Latest SCOTUS Statement: Listen to Me (But You Might Get Sued)

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In case you missed it: not everyone is happy about Friday’s Supreme Court decision, which effectively overturned Texas’ ban on same-sex marriage by finding such bans unconstitutional.

Attorney General Ken Paxton released a statement ahead of the Supreme Court’s decision on Friday, asking county clerks to wait for direction from his office before issuing marriage licenses. However, clerks in counties across the state chose instead to take their cues from the Supreme Court and began issuing marriage licenses to couples in their counties.

By 5:00 on Friday, the Texas Observer had identified at least eighteen counties that were issuing marriage licenses to couples regardless of gender, including: Bexar, Brazoria, Cameron, Dallas, El Paso, Hale, Harris, Hidalgo, Lamar, Limestone, Midland, McLennan, Nueces, Tarrant, Travis, Webb, Wichita and Willacy.

Randall and Smith County refused to issue licenses to same sex couples, claiming they needed to wait for updated forms. Initially, Williamson County put a halt to all marriage licenses until they could get direction, but after outrage from a straight couple, they changed their stance to only issuing licenses “not affected by the U.S. Supreme Court ruling,” Austin American Statesman reported.

In a statement Sunday, Paxton finally offered the direction promised regarding the Supreme Court decision.

Paxton recognizes the role of the Supreme Court in interpreting the Constitution – albeit in a “lawless” fashion, in this case – and spells out the impact on the existing ban on same-sex marriage in Texas. “A ruling by the U.S. Supreme Court is considered the law of the land,” the statement says, though Paxton makes it incredibly clear that he does not agree with the ruling in question. Further, the ruling has an immediate impact on the law in Texas:

    “Pursuant to the Court’s flawed ruling, the U.S. District Court for the Western District of Texas issued an injunction against the enforcement of Texas marriage laws that define marriage as one man and one woman and therefore those laws currently are enjoined from being enforced by county clerks and justices of the peace.”

So where does Paxton see the wiggle room?

He points to two places: the lack of a court order to issue licenses of any kind, and the First Amendment’s guarantee of freedom of religion.

Without a court order, Paxton seems to argue, there is nothing forcing any county clerk or employee to issue a marriage license to anyone – whatever the gender of their partner. Further, his statement argues, freedom of religion covers county employees who may see issuing a license to a same-sex couple as a violation of their religion. He does, however, recognize that this may result in trouble for these employees: “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 refers to “numerous” lawyers on standby ready to defend those who take this stand.

One could point to the conscience clauses in operation in many states that allow pharmacists to refuse to provide contraceptives if it violates their religion to do so as a basis for this interpretation of what actions are acceptable under the new ruling regarding marriage. That is, if Texas had any such law on the books.

According to a 2015 brief by the Guttmacher Institute, Texas is not one of the states that has a policy in place to allow pharmacists to refuse service on the basis of their religion.

While Paxton is busy blasting the Supreme Court for promoting a “newly invented federal constitutional right,” he is encouraging county employees to take new liberties with their religious freedom that, as of yet, have no comparable precedent. And, should they follow his lead, that action could very well get them sued.

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About Author

Genevieve Cato

Genevieve Cato is a feminist activist and a native Texan. While not writing for the Burnt Orange Report, she can be found working for NARAL Pro-Choice Texas, serving as a community member of the Communications Committee for the Lilith Fund for Reproductive Equity, and drinking copious amounts of pretentious local craft beers.

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