Obergefell, RFRA, and the Texas AG
Yesterday, Texas Attorney General Ken Paxton published an opinion arguing that state officials are not required to issue marriage licenses to same-sex couples as required by Obergefell v. Hodges if their religious beliefs preclude them from doing so. The problem is that aside from a conclusory invocation of the First Amendment, the apparent source of the religious exemption is the Religious Freedom Restoration Act.
As every student learns on the first day of constitutional law, however, constitutional provisions trump statutory ones.
Aside from the obvious problem that Paxton is advising state officials to ignore the requirements of the Constitution (which Paxton no doubt swore to uphold when he took his oath of office), failure to comply with the requirements of Obergefell would open government actors and entities up to punitive damages under federal civil rights law.
42 U.S.C. 1983 creates a cause of action–a right to sue–for individuals when government officials deny them their constitutional rights under color of law, and allows for punitive damages are available when an official’s conduct maliciously, intentionally, or recklessly disregards a clearly established constitutional right. Last week’s decision in Obergefell, clearly established the individual right to same-sex marriage, and Marbury v. Madison, a foundational constitutional law case, unequivocally affirmed the supremacy of the Constitution over countervailing statutes.
As a result, Texas officials who refuse to issue licenses in reliance on AG Paxton’s clearly incorrect opinion do so at their peril.
Patrick Luff is a highly respected attorney with over 25 years of experience in the practice of law. He specializes in areas such as business litigation, real estate, and trust and estates planning. Patrick is dedicated to providing quality legal services to his clients and is committed to finding practical and successful solutions to their legal issues. He is a respected member of the legal community and is committed to upholding the highest standards of professionalism.
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