Texas Attorney General Ken Paxton, calling the Supreme Court “lawless,” tells the bigots of his state that they do not have to issue same-sex marriage licenses

According to the Attorney General of Texas, Ken Paxton, the “judicial activists” of the United States Supreme Court, in deciding in favor of marriage equality last Friday, “ignored the text and spirit of the Constitution to manufacture a right that simply does not exist.” And, as that’s the case, he’s just announced that the good Christian men and woman of his state cannot be compelled to marry same-sex couples, or, for that matter, even issue them licenses. Here’s a clip from the letter he issued today, followed by the opinions of a few legal scholars.

…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.

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 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…

For those of you who would like more, a scan of Paxton’s entire letter can be found here… For those of you who would like less, here’s his summary.

I’d like to think that Paxton and his ilk would be shut down quickly, but it would seem, based on the opinion of some, that it might not be that easy. The following comes by way of the Washington Post blog.

…Professor Daniel Pinello of the John Jay College of Criminal Justice in New York noted by e-mail that Texas is under no immediate obligation to issue licenses, because the Court’s decision last week only applies to the 6th Federal Circuit. Texas is in the 5th Circuit — but that circuit will likely soon issue a ruling following with the new decision. Once it does, he writes, “I’m aware of no general legal doctrine or precedent holding that county or other public officials are exempt from abiding by rights articulated by the Supreme Court in the event the religious beliefs of those public employees are in conflict with the federal right.”

Ruthann Robson, distinguished professor of law at the City University of New York, explained the question at greater length when we spoke by phone. Whether or not an individual county clerk is allowed to deny a license on religious grounds “is still unresolved,” she said. When New York passed its same-sex marriage law several years ago, some clerks resigned rather than issue licenses after Gov. Andrew Cuomo (D) said that accommodation was not an option. In Alabama earlier this year, however, the high court allowed religious objections. (Paxton himself notes that clerks deciding against issuing licenses “may well face litigation and/or a fine.”)

For an accommodation to be made, certain questions arise. “Is their religious belief substantially burdened?” Robson asked. “Is it overridden by their status as a public employee? Where is that line? Because as a public employee, you swear to uphold the Constitution.” Public employees “don’t have full 1st Amendment rights,” she said, “because it’s balanced against the interest of their employer, which in this case is the government.”

What’s not allowed, in Robson’s estimation, is for a clerk to shut down the issuance of licenses across the board over a personal objection. “The question in terms of accommodation has to do with individuals,” Robson said. “So if the entire courthouse closed, that would not be an accommodation.”

In that case, the Supremacy Clause kicks in.

The Supremacy Clause, in Article VI of the Constitution, delineates that the Constitution is the “supreme law of the land.” Tension between the power of the federal government and individual states is as old as the country itself. Even when something is mandated by federal law — or by the Supreme Court — states have often tried to work around it. The most prominent examples center on the tension over slavery that led to the Civil War and, in the war’s aftermath, the South’s treatment of black Americans…

For what it’s worth, people used to defend slavery and segregation by pointing to the Bible as well. And I’m sure there were teachers at schools throughout the south who, if given the opportunity, would have refused to educate black students on the grounds that having to treat them as human beings would somehow violate their religious freedom. Thankfully, I don’t think they were given that option. And I’m of the opinion that we should do everything in our power to see that it doesn’t happen now. Personally, I’d like to wake up tomorrow morning and see footage of gay couples being escorted into Texas courthouses by federal troops and camera crews the same way that, in the late ’50s, we opened up the schools of the south to black students. I want to see these last hateful gasps of institutional bigotry squashed early and decisively. If the so-called Christians of our nation’s most backward state don’t like it, so be it.

[above: In 1957, President Eisenhower sent the 101st Airborne Division into Arkansas to protect the Little Rock Nine, the first black students to enter Little Rock’s Central High.]