One thing we often say of Texas weather: Just wait a day and it will change. Too bad we can’t say the same thing about our political leadership – it just gets (un)progressively worse with little improvement in the forecast.
Our prior Attorney General, Greg Abbott, was known for his campaigning with the likes of Ted Nugent and describing his job as AG thus: “I go into the office, I sue the Obama administration, and I go home.” Not much of a multi-tasker. One wonders how he would have filled his days had he served during a Ted Cruz administration.
But given the weather pattern we find ourselves stuck in, Abbott was elevated to governor, and Tea Party darling/former state senator, Ken Paxton, was elected to fill the AG post despite some legal issues involving state securities law. When asked about the violations during his campaign for AG, he claimed ignorance – poor guy, he was just unaware of those laws. Moreover, compared to Abbott, Paxton is even more interested in political posturing than performing the governmental duties assigned to the AG. We can only hope he’ll find his way to a court room soon – those securities law violations have been more thoroughly investigated and prosecutors are planning to take their findings of potential fraud (a felony) to a grand jury later this month. Let’s hope that works out for us. Additionally, there’s another possible legal action regarding some questionable land deals. (I’m not sure whether he had any particular mental state – ignorance or semi-awareness – regarding the legalities of those actions.)
But now his legal nonchalance has extended itself beyond his personal affairs as he orchestrates constitutional violations en masse. Specifically, in the wake of the U.S. Supreme Court’s declaration that the U.S. Constitution guarantees same-sex couples the same right to marry as heterosexual couples, Paxton looks askance at that court’s supremacy on the issue of interpreting the constitution and has issued his own advisory opinion stating that county clerks may refuse to issue marriage licenses to same-sex couples if doing so conflicts with their religious beliefs.
Although he doesn’t quite instruct the clerks not to issue licenses to these couples, he makes it quite clear that it wouldn’t bother him if they decided not to do so. So much for his Constitutional oath of office affirming that “to the best of my ability preserve, [I will] protect and defend the Constitution and Laws of the United States and of this state, so help me God.” But at least he is aware and considerate enough to give the clerks a heads up: if they go rogue, they may get sued. When that happens, he assures them, plenty of private attorneys are waiting eagerly to represent them.
Personally, I’d like to meet the clerk who thinks a lawsuit is a reasonable alternative to not doing their job, which specifically requires issuing marriage licenses to legally qualified couples. A job, I might add, that required them to take the same oath of office as Paxton – and one they could quit whenever the conflict between their religious beliefs and their duties becomes too onerous.
I wonder whether they realize that they would be sued in their individual capacity since a county can’t have religious beliefs, and as individuals, they would be unable to claim the governmental immunity that usually protects a public official when something goes awry in the performance of their job. Usually, you see, state or local government officials are shielded from lawsuits and/or liability when sued for acts arising from their good faith performance of discretionary duties that are within the scope of their statutory authority. If an action involves personal deliberation, decision and judgment, it is discretionary; if the official has no choice as to whether to perform a task, it is considered ministerial.
Considering that distinction, it would seem that the county clerks have a ministerial duty to issue marriage licenses to legally qualified individuals. It’s not a discretionary act where they can decide whether or not to issue a marriage license: if the legal requirements are met, they must issue the license. As of last Friday, June 26th, the Supreme Court ruled that couples cannot be legally disqualified based on gender. Therefore, Texas county clerks are required to perform the ministerial task of issuing same-sex couples licenses if they otherwise meet the qualifications. Any clerk who cites religious beliefs for their failure to perform this clear duty, accordingly, is acting outside the scope of their authority and cannot use governmental immunity as a shield from liability, which is why Paxton says – without explaining – that “private” attorneys would be defending them. Government attorneys only defend officials when they act within the scope of their authority.
If it were me, General Paxton, I’d rather not take you up on your suggestion that I get sued. One reason is I’d really hate being on the receiving end of depositions – my preference is to ask the questions, not answer them. Nor would I want to put family members, pastors, co-workers, and others with knowledge of relevant facts in the position of participation in my legal entanglement. And you’d better believe that the plaintiffs’ legal team would ask to collect attorney’s fees along with any kind of fines or damages (like intentional infliction of emotional distress) that could be levied. Frankly, who has the patience for appellate courts to consider the validity of a lower court judgment, not to mention, the money to pay a judgment if it is ultimately upheld? (A piece of legal advice here for the rogue clerks: make sure your home is homesteaded so no lien can be attached.)
But let’s suppose you could find another religious, homophobic organization or person to pay whatever damages were assessed. Not so fast. Judgments in your name tend to follow you around. Any such judgment would probably need to be listed on credit applications and other financial documents. Banks and other institutions may be less sympathetic regarding rogue actions by a former public official than your zealot friends and our current Attorney General. What if your religious beliefs prevented you from paying the moneylenders one day?
But regardless of any actions ultimately taken or not taken by county clerks, Paxton’s urging the clerks to break the law and endure a lawsuit just shows how unqualified he is to be the state’s chief legal officer. The fact that he would be so blasé about these officials subjecting themselves to legal action demonstrates how little experience he has in the court system, and how he should not be supervising an office of over 400 professional litigators. In short, he’s not a real lawyer. He’s a businessman who thinks he should be let off with little more than a slap on the wrist for his violations of securities laws because he was ignorant of those laws. Worse still, he’s also a politician who would join up with Lt. Gov. Dan Patrick to establish a theocracy of their religion (and that of their Tea Party followers).
There may be others who would sign up for their plan to create a religious state, but I’m willing to bet that a majority of Texans would like these leaders to keep their personal religious beliefs personal and respect people of all faiths (or no faith). In 1620, English men and women journeyed to this country in search of religious liberty and freedom of conscience, not another state-imposed religion. Our founding fathers built on that foundation with the first sentence of the Bill of Rights: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
The freedom of religion provision has been interpreted many times over the years as an expression of the intent to separate church from state. Religion has crept into public life in various instances, but there can be no question that your right to exercise your religion, also provides me with the right to be free of your religion. You, Ken “Lawless” Paxton, violate the constitution when you urge the use of the machinery of government to deprive marriage licenses to people on the basis of religious beliefs. And on this, the Fourth of July, 2015, 239 years after our founding, let me say that your actions, General Paxton, are nothing short of un-American.
Let’s hope the weather changes soon. Our land of law is being inundated by incompetent zealots.