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Texas And Other States Fixin' To Secede From Gay Union
As you could have predicted, for all the celebrations of Friday's Great Big Supreme Court decision, it's now time for the foot-dragging by people who simply don't wanna ride the Gay Marry-Go-Round. Chief among them is Texas Attorney General Ken Paxton, who issued an epic cri de butthurt Friday that explained how the First Amendment prohibits making Christian bigots feel bad. He followed that up with a letter Sunday offering Lt. Gov. Dan Patrick his carefully thought out legal advice, which is that while marriage equality is the law of the land, county clerks can feel free to refuse to issue licenses if their religious sensibilities might be bruised, and justices of the peace can similarly declare they ain't gonna marry no gays, no sir. Oh Texas. You're going to look so silly when your ass is getting sued.
In fact, while Paxton's opinion says clerks should just go ahead and refuse to issue marriage licenses to same-sex couples, it also mentions that they should be ready to face legal trouble, but that's all right, because, said Paxton in a statement accompanying the opinion, he totally has their backs, as do plenty of good Jesus Lawyers:
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 ... 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.
Paxton argued that even though the Supreme Court's decision was completely bogus, it was still the law, but there's a clever way that clerks can ignore it, which is to stick their fingers in their ears and shout "First Amendment, First Amendment, I can't hear you":
[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. This newly invented federal constitutional right to same-sex marriage should peaceably coexist alongside longstanding constitutional and statutory rights, including the rights to free exercise of religion and speech.
He also said that under the Religious Freedom Restoration Act, any clerk who objected to handling paperwork for those people could just have a deputy clerk do the job, and if the deputy clerk felt religiously persecuted, some other legal subordinate could do it, although Paxton recognized that all these people refusing to do their jobs for the very best of reasons could eventually result in unpleasantness:
In that scenario, were a clerk to issue traditional marriage licenses while refusing to issue same-sex marriage licenses, it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution.
Paxton also raised the possibility of clerks just plain refusing to issue any marriage licenses at all, which might result in the clerk's religious freedom being "in tension" with state law requiring that clerks "'shall' issue marriage licenses to conforming applications." Paxton flounced on that one, saying it was beyond the scope of his opinion.
The opinion also states that justices of the peace should feel free to not marry anyone they don't wanna marry, because while Texas law permits justices to marry people, it doesn't require them to, and also there's probably plenty of other people who can do the job. Like maybe a snowman that the gay couple pretends is Parson Brown.
Now, Yr Wonkette is not a lawyer, but Greg Lipper, an attorney with Americans United for Separation of Church and State, actually is, and he tweeted out his critique of Paxton's opinion; we'll moosh his multi-tweet format into paragraph form:
1. His invocation of the Constitution is a red herring: the Free Exercise Clause doesn't require exceptions from generally applicable laws, and so the Constitution does not require exceptions to government officials' obligation to issue marriage licenses to all comers.
2. As for the AG's arguments about RFRA: he assumes that the only question is whether there is someone else on hand to issue the license, but misses the point: Being told by a govt. official that "I don't serve your kind" is demeaning and stigmatizing, even if there's a backup.
3. Courts wouldn't tolerate that kind of nonsense from clerks who objected to interracial marriage, and courts aren't likely to tolerate it from clerks who object to same-sex couples getting married.
4. So the AG's order is going to embolden certain TX officials, based on dubious legal analysis, and ultimately get them sued.
Shorter version: Ipsa that, ya pissy little Lone Star jerk.
Several other Southern states are similarly slow on the uptake, and may need to be dragged kicking and screaming into the Brave New World of (*shudder*) equal protection under the law. Mississippi and Louisiana are waiting on a ruling from the 5th Circuit, which put a case on hold while it waited for the Supremes to rule, but the appeals court should clear that out fairly quickly, so they'll need to try other stratagems, like forgetting where they left the keys to all the states' courthouses. A couple of innovative Alabama clerks noticed that state code only says they "may" issue marriage licenses, not that they "shall" do so. Also, Alabama's Christian superhero, state Supreme Court Chief Justice Roy Moore, says he'll make sure no gays get married there because the Supreme Court's ruling is "illegitimate," which suggests that he doesn't do Constitution very good.