Today’s ruling by five Justices of the U.S. Supreme Court marks a radical departure from countless generations of societal law and tradition. The impact of this opinion on our society and the familial fabric of our nation will be profound. Far from a victory for anyone, this is instead a dilution of marriage as a societal institution.
What is most disturbing is the extent to which this opinion is yet another assault on the actual text of the U.S. Constitution and the rule of law itself.... The truth is that the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely-held religious beliefs about marriage.Then on Sunday, Paxton issued an Attorney General's Opiinion (full text) on the right of public officials to assert religious objections to issuing marriage licenses or performing same-sex marriages. His statement (full text) accompanying the issuance of the opinion is a good deal more strident than the full opinion itself. Paxton's statement says in part:
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.
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. Here is where things currently stand:
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. There is not, however, a court order in place in Texas to issue any particular license whatsoever – only the flawed direction by the U.S. Supreme Court on Constitutionality and applicable state laws.
Importantly, the reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious libertyPaxton's opinion itself carefully provides that religious accommodation "may" be permitted:
A county clerk has a statutory right to delegate a duty to a deputy clerk, including theissuance of same-sex marriage licenses that would violate the county clerk's sincerely held religious beliefs. Regarding deputy clerks and other employees, state and federal employment laws allow them to seek reasonable accommodation for a religious objection to issuing same-sex marriage licenses. And under the Religious Freedom Restoration Acts, deputy clerks and other employees may have a claim that 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, particularly when available alternatives would not impose an undue burden on the individuals seeking a license.... Importantly, the strength of any claim under employment laws or the Religious Freedom Restoration Acts depends on the particular facts of each case....
Factual situations may arise in which the county clerk seeks to delegate the issuance of same-sex marriage licenses due to a religious objection, but every employee also has a religious objection to participating in same-sex-marriage licensure. 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.
If instead, a county clerk chooses to issue no marriage licenses at all, it raises at least two questions. First, a clerk opting to issue no licenses at all may find himself or herself in tension with the requirement under state law that a clerk "shall" issue marriage licenses to conforming applications.Moving then to the question of whether judges and justices of the peace may refuse on religious grounds to conduct same-sex marriage ceremonies, Paxton says in part:
Under the Religious Freedom Restoration Acts, justices of the peace and judges may claim that the government forcing them to conduct a same-sex wedding ceremony over their religious objection, when other authorized individuals have no objection, is not the least restrictive means of the government ensuring that the ceremonies occur, assuming that is compelling governmental interest. Again, the strength of any such claim depends on the particular facts.The Houston Chronicle reports on developments.