Texas Attorney General Ken Paxton on Sunday called the Supreme Court's Obergefell v. Hodges marriage ruling "lawless" and pledged to uphold religious liberties in his state and fight any attempts to use coercion that would violate the conscience of those who oppose same-sex marriage by forcing them to participate in such unions.
In a blistering critique of the landmark decision, Paxton wrote: "Friday, the United States Supreme Court again ignored the text and spirit of the Constitution to manufacture a right that simply does not exist. 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.
"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."
Paxton indicated he is besieged by requests of hundreds of state officials seeking guidance on how to implement what he said "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.
"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," he said. "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 liberty. Even the flawed majority opinion in Obergefell v. Hodges acknowledged there are religious liberty protections of which individuals may be able to avail themselves. Our religious liberties find protection in state and federal constitutions and statutes. While they are indisputably our first freedom, we should not let them be our last."
While reiterating that the ruling "fabricated a new constitutional right in 2015," Paxton concluded the decision "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."
Paxton offered the following opinion to guide Texas officials and those asked to participate in same-sex marriages they deem inappropriate for religious reasons:
- "County clerks and their employees retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses. The strength of any such claim depends on the particular facts of each case."
- "Justices of the peace and judges similarly retain religious freedoms, and 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, because it is not the least restrictive means of the government ensuring the ceremonies occur. The strength of any such claim depends on the particular facts of each case."
- "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 concluded: "Texas must speak with one voice against this lawlessness, and act on multiple levels to further protect religious liberties for all Texans, but most 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."