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Texas AG Refuses to "Defend the Constitution and Laws of the United States"

July 2, 2015

As the Confederate flag is coming down, calls for states to nullify federal laws are going up. In Texas, Attorney General Ken Paxton advised county clerks, magistrates and justices of the peace they may opt-out of performing same-sex marriages the United States Supreme Court legalized nationwide on Friday. As it turns out, Paxton isn't just telling public employees they may discriminate against the public. He's telling them they should violate their oath of office, too.
All elected or appointed officials in Texas must swear this oath:

"I, _______________________, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of ___________________ of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God."

Apparently, Paxton does not believe in supremacy, or at least not the kind of supremacy mandated by the U.S. Constitution. As the Supremacy Clause in Article VI makes clear:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Unlike North Carolina, where Republican legislators overrode the Governor's veto to allow clerks to refuse to perform all marriages altogether, Paxton instructed judges, justices of the peace, county clerks and their employees that they "retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses." Not to content to rest there, the Attorney General proclaimed the Lone Star State was ready to come to their defense:

"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."

Unfortunately for Paxton and his fellow travelers in other states, Shannon Minter, legal director for the National Center for Lesbian Rights explained, "Public officials have no constitutional or statutory right to discriminate in providing public services." Neither the "ministerial exception" for churches, religious schools and groups nor the Court's newly discovered religious freedom protections for owners of privately held businesses enable government workers to refuse service to members of the public that pay them.
AG Paxton's guidance should have been simple. Do your job. If you can't, you should resign or you will be fired. In North Carolina last year, Rockingham County magistrate John Kallam Jr. concluded that he could no longer uphold the Tar Heel States oath of office. Believing he "would desecrate a holy Institution established by God Himself," Kallam did the right and noble thing: he resigned.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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