Texas AG Paxton under the Microscope

It seems fair to say that statewide Texas politicians of the Republican variety are having some legal troubles.

Some of them have led to full-blown legal proceedings, like former Governor Rick Perry’s pending criminal charge, the civil fine against Attorney General Ken Paxton from the Texas State Securities Board (for an incident that occurred before he was elected), and the criminal securities fraud complaint filed against AG Paxton by Texans for Public Justice (which goes before a grand jury soon).

Some have remained in the realm of allegations and suspicions, like current Governor Greg Abbott’s alleged misconduct with regard to the Texas Enterprise Fund when he was Attorney General. I’m not sure if any formal complaints are currently pending against Lieutenant Governor Dan Patrick—which is not to say he hasn’t had complaints (PDF file) before—but he sure does know how to stir people up.

"SCOTUS Marriage Equality 2015 (Obergefell v. Hodges) - 26 June 2015" by Ted Eytan from Washington, DC, USA (SCOTUS Marriage Equality 2015 58151) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons

Most recently notorious, I’d say, is AG Paxton’s official opinion (PDF file here or here), issued on June 28, 2015 in response to a request from LG Patrick, regarding the U.S. Supreme Court’s marriage equality ruling in Obergefell v. Hodges and the Fifth Circuit’s order affirming that ruling in De Leon v. Abbott.

In a nutshell, Paxton said—in his capacity as top legal counsel for the state of Texas—that county clerks with self-proclaimed religious objections to same-sex marriage are not obligated to issue marriage licenses. He stated that a county clerk who objects can delegate the job to a subordinate with fewer religious hang-ups, but he punted on the questions of an entire office refusing to do it, or refusing to issue any marriage licenses at all:

Factual situations may arise in which the county clerk seeks to delegate the issuance of same-sex marriage licenses due to a religious objection, but every employee also has a religious objection to participating in same-sex-marriage licensure. In that scenario, were a clerk to issue traditional marriage licenses while refusing to issue same-sex marriage licenses, it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution.

If instead, a county clerk chooses to issue no marriage licenses at all, it raises at least two questions. First, a clerk opting to issue no licenses at all may find himself or herself in tension with the requirement under state law that a clerk “shall” issue marriage licenses to conforming applications. TEX. FAM. CODE ANN.§ 2.008(a) (West 2006). A court must balance this statutory duty against the clerk’s constitutional rights as well as statutory rights under the Religious Freedom Restoration Acts. Second, a court must also weigh the constitutional right of the applicant to obtain a same-sex marriage license. Such a factually specific inquiry is beyond the scope of what this opinion can answer.

[Emphasis added]

I bolded part of that excerpt to highlight that Paxton seems to be saying that, should an entire county clerk’s office refuse to issue same-sex marriage licenses, a court may get to re-litigate the entire issue. I’m not sure where he gets that idea.

Paxton even made a more-or-less direct offer of legal assistance to county clerks facing lawsuits over such a decision, which he conceded would be inevitable, in a press release issued along with the opinion on June 28:

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.

[Emphasis added.]

He had issued two earlier press releases on the subject, which were also quite overtly-religious and alarmist in tone, and bordering on seditious in meaning:

June 25, 2015, in preparation for the Obergefell decision:

I remain prayerful that the Court will heed millennia of family tradition, Judeo-Christian instruction and common sense and will respect the role of states. But whatever the ruling, I would recommend that all County Clerks and Justices of the Peace wait for direction and clarity from this office about the meaning of the Court’s opinion and the rights of Texans under the law.

June 26, 2015, in response to the ruling:

[N]o court, no law, no rule, and no words will change the simple truth that marriage is the union of one man and one woman. Nothing will change the importance of a mother and a father to the raising of a child. And nothing will change our collective resolve that all Americans should be able to exercise their faith in their daily lives without infringement and harassment.

We start by recognizing the primacy and importance of our first freedom – religious liberty. The truth is that the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely-held religious beliefs about marriage. In numerous incidents trumpeted and celebrated by a sympathetic media, progressives advocating the anti-traditional marriage agenda have used this issue to publicly mock, deride, and intimidate devout individuals for daring to believe differently than they do. This ruling will likely only embolden those who seek to punish people who take personal, moral stands based upon their conscience and the teachings of their religion.

It is not acceptable that people of faith be exposed to such abuse. The First Amendment to the U.S. Constitution protects our religious liberty and shields people of faith from such persecution, but those aspects of its protections have been denigrated by radicals, echoed by the media and an increasingly-activist judiciary. Consistent with existing federal and state Religious Freedom Restoration Acts that should already protect religious liberty and prevent discrimination based on religion, we must work to ensure that the guarantees of the First Amendment, protecting freedom of religion, and its corollary freedom of conscience, are secure for all Americans.

See, it’s conservative Christians who are the real victims here, because liberals will continue to call them “bigots.” Also, a few conservative Christians who work in government might see their job duties slightly change. All snark aside, though, it’s important to remember that an elected state official wrote the above words (or at least signed his name to them) in the year 2015.

"Obergefell v. Hodges Decision Announced — June 26, 2015" by Matt Popovich [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/)], via Flickr

The responses to Paxton’s actions were swift, and hopefully, effective. An activist involved with the Travis County Democratic Party filed an ethics complaint against AG Paxton regarding his June 28 opinion. A group of Texas attorneys—Steve Fischer, Brian Bouffard, and Ruth King Kollman—are submitting a complaint to the Texas Office of the Chief Disciplinary Counsel, and licensed Texas attorneys have been invited to sign on to the complaint (h/t Brenda).

You may read their complaint here or here (PDF file), and you can add your name (again, you must have a valid Texas bar card) here.

The complaint alleges multiple violations of the Texas Disciplinary Rules of Professional Conduct:

  • Rule 3.04(d) – Fairness in Adjudicatory Proceedings: “A lawyer shall not…knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client’s willingness to accept any sanctions arising from such disobedience.”
  • Rule 3.07(a) – Extrajudicial Statements: “In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.”
  • Rule 5.08(a) – Prohibited Discriminatory Activities: “A lawyer shall not willfully, in connection with an adjudicatory proceeding, except as provided in paragraph (b), manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity.”
  • Rule 8.04 – Misconduct: “A lawyer shall not…
    • “…violate these rules, whether or not such violation occurred in the course of a client-lawyer relationship.” Rule 8.04(a)(1)
    • “…engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Rule 8.04(a)(3)
    • “…engage in conduct constituting obstruction of justice.” Rule 8.04(a)(4)
    • “…violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.” Rule 8.04(a)(12)

This could get interesting.

Photo credits: “SCOTUS Marriage Equality 2015 (Obergefell v. Hodges) – 26 June 2015” by Ted Eytan from Washington, DC, USA (SCOTUS Marriage Equality 2015 58151) [CC BY-SA 2.0], via Wikimedia Commons; “Obergefell v. Hodges Decision Announced — June 26, 2015” by Matt Popovich [Public domain, CC0 1.0], via Flickr.


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