Texas To Nullify Federal Gay "Marriage"?

by JASmius



Well, sort of:

County clerks can refuse to issue marriage licenses to same-sex "couples" based on religious objections to gay marriage, Texas Attorney General Ken Paxton said Sunday.

Paxton noted that clerks who refuse to issue licenses can expect to be sued, but added that “numerous lawyers stand ready to assist clerks defending their religious beliefs,” in many cases without charge.

The formal opinion did not specify what constitutes a sincerely held religious belief, noting that “the strength of any such claim depends on the particular facts of each case.”…

Paxton’s opinion also noted that judges and justices of the peace can refuse to perform same-sex "marriages".

“Judges and justices of the peace have no mandatory duty to conduct any wedding ceremony,” the opinion said, adding that couples cannot be refused on the basis of race, religion or national origin. [emphases added]

This pronouncement has a Pontius Pilate flavor to it.  A-G Paxton isn't formally declaring that the State of Texas will not comply with the SCOTUS's Obergefell decision - which is what he should be doing,  He's outsourcing his official civil disobedience to individual county employees on a freelance basis, which will set up those clerks that take him up on it to be professionally and financially destroyed, and assuring them that the State will pick up their legal fees.  Not exactly a bold stand for the institution of marriage, biblical values, and against judicial tyranny,

And it may have another problem:

Government, however, is a monopoly. People cannot go elsewhere to get the government-issued license needed to marry. They could possibly go elsewhere to get a Justice of the Peace, but that’s still a government function staffed by government employees. As part of the government, they have no right to impose a religious test on the issuance of permits that isn’t supported by law in some form — and the Supreme Court, for better or worse, has removed those restrictions. It would be similar to county clerks refusing to issue permits for an atheist rally on public land but allowing for a Lutheran rally under the same or similar circumstances, or vice versa. There is no free market for people to go elsewhere to follow the rule of law, no matter how controversial or arguable destructive the law may or may not be. Government employees have to follow the law, or find jobs elsewhere; otherwise, we truly have the Rule of Whim at every level of government, and every bureaucrat becomes a tyrant.

The way to get around this objection would be to simply declare that Texas will not comply with Obergefell,  The only way A-G Paxton's plan would work is if the refusal of "marriage" licenses to homosexual "couples" by individual county clerks on religious conscience grounds did not deny them altogether - i.e. this clerk won't do it but there would be others who would,  That way the "law" would still be being followed while protecting the religious rights of individual clerks,  In Paxton's plan, he's essentially suckering various and sundry county employees to the Lavender wolves to be ferociously ripped apart,  To say nothing of yielding Texas essentially the same PR bleepstorm that it would incur from simple, straightforward nullification,

Color me unimpressed.


UPDATE: Ted Cruz is (almost) aboard the nullification train:

Ted Cruz has some unsolicited advice for the States not specifically named in last week’s Supreme Court ruling on gay marriage: Ignore it.

“Those who are not parties to the suit are not bound by it,” the Texas Republican told NPR News’ Steve Inskeep in an interview published on Monday. Since only suits against the States of Ohio, Tennessee, Michigan and Kentucky were specifically considered in the Supreme Court’s Obergefell v. Hodges decision, which was handed down last Friday, Cruz — a former Supreme Court clerk — believes that other States with gay marriage bans need not comply, absent a judicial order.

“[O]n a great many issues, others have largely acquiesced, even if they were not parties to the case,” the 2016 presidential contender added, “but there’s no legal obligation to acquiesce to anything other than a court judgement.”

All fifty States can, of course, nullify Obergefell or any other unconstitutional SCOTUS ruling.  But forty-six out of fifty would be more than sufficient to send that message.

If any of them besides kinda-sorta Texas were willing to do so, that is.