Texas Republican asks state attorney general to say LGBTQ marriages don’t have to be recognized
A Texas Republican lawmaker wrote a letter Texas Attorney General Ken Paxton asking him to issue an opinion saying Texans do not have to recognize legal same-sex marriages as valid, despite a 2015 U.S. Supreme Court ruling that all State bans prohibiting the practice were unconstitutional.
In the letter to Paxton, dated October 19, State Representative James White (R-Hillister) asked for clarification on the extent to which the Supreme Court ruling could be implemented, noting that neither lawmakers nor lawmakers Texas voters had repealed the state’s legal ban. or constitutional prohibitions on same-sex marriage, which also prohibit civil unions.
“The Texas Constitution and laws continue to define marriage as the union of a man and a woman. The state of Texas has neither amended nor repealed its marriage laws in response to Obergefell vs. Hodges“White wrote, referring to the Supreme Court’s ruling.” And the Supreme Court does not have the power to formally amend or revoke a state law or constitutional provision, even after considering that the State law violates the interpretation of the Constitution by the Supreme Court.
White argued, based on previous Texas case law, that when a court declares a law unconstitutional, the law remains in effect unless the body which promulgated it repeals it, and the conclusion Supreme Court ruling that the ban on same-sex marriage was unconstitutional did not mean the law was struck down.
“The fact that a federal district court ordered state officials to apply Texas marriage laws does not affect the existence or validity of those laws with respect to private parties,” which are not even bound by the Fourteenth Amendment – let alone the Supreme Court ruling. purported interpretations of it, “argued White, referring to the decision of DeLeon vs. Perry, a case brought by Texans challenging the state’s ban on recognizing same-sex marriage.
“I respectfully ask you to specify that neither Oberefell or From Leon requires private citizens to recognize same-sex marriages, and no ruling requires or permits them to override existing Texas laws that continue to define marriage as the union between a man and a woman, ”White concluded.
If Paxton issues an opinion that supports White’s interpretation of the law, that would not invalidate same-sex marriages per se, but would allow individual citizens – even those acting on behalf of the state, such as a county clerk or a circuit judge – refuse to recognize an LGBTQ couple as legally married. This could have implications for obtaining a marriage license, inheritance issues, establishing property rights or eligibility for certain tax credits or benefits, not to mention many other ways in which state and national laws encourage marriage.
See also: Texas agency removes website with LGBTQ suicide helpline after governor’s main opponent complains
Dallas Morning News reporter Lauren McGaughy noted in a Twitter thread that Texas lawmakers also never repealed the anti-sodomy law at the heart of 2003 Lawrence v. Texas case, in which the United States Supreme Court held that state law prohibiting consensual same-sex relationships or activities was unconstitutional. She pointed out that, as recently as 2015, local police in Baton Rouge, Louisiana, were always arrest and charge men under the state’s “crimes against nature” law which was also declared unconstitutional in the Laurent Case.
Leaving these laws on the books, even if they are not enforceable under the law, can harm the LGBTQ community.
– Lauren Mc-Ghoul-hy (@lmcgaughy) 22 October 2021
So if we applied White’s logic on Oberefell to the Laurent case, it’s possible that – if Paxton voices the opinion White is seeking – local Texas police departments will be inundated with calls from social conservatives demanding that officers arrest or jail couples – neighbors, acquaintances, or even strangers – who ‘they believe they are engaging in homosexual behavior. (It should be noted that the anti-sodomy law has also prohibited certain consensual sexual acts between heterosexual couples, although in practice the law has been used primarily to target LGBTQ people.)
This would then raise the question of what might happen if individual police officers felt authorized to break into people’s homes and arrest them on charges under the sodomy law, and if they would be jailed for breaking the law. law.
In a comment to McGaughy, State Representative Jessica González (D-Dallas), vice-chair of the Texas Legislative LGBTQ Caucus, lambasted White’s letter to Paxton, saying it continues the Texas Republicans’ model who harass cultural warfare issues as a means of “signaling virtue” to the party base – something that might also be relevant as White runs for a statewide job next year, seeking to become the state agriculture commissioner.
“Despite this year’s red meat program in the [Texas Legislature], Republican lawmakers want to continue waging their cultural war on the LGBTQ + community rather than passing laws that create a safe and tolerant state for ALL Texans, ”Gonzalez said, referring to a bill recently enacted by the government. Governor Greg Abbott (R) who prohibits transgender youth from participating in sports that match their gender identity.
“It is a clear reminder that we must always be vigilant and ready to defend our rights,” she added.
The state representative Julie Johnson (D-Farmers Branch), who is married to a woman, responded on Twitter by writing, “Now[lescollèguesrépublicainsdel’AssembléelégislativeduTexasnepensentpasquel’amourquemafemmeetmoiavonsestassezbonpourfaireunengagementàvielesunsenverslesautresTropc’esttropCoupezlethéâtreBSVousembarrassezleTexas[theTexasLegislatureRepublicancolleaguesdon’tthinkthelovemywifeandIhaveisgoodenoughtomakealifetimecommitmenttoeachotherEnoughisenoughCuttheBStheatricsYouareembarrassingTexas”![lescollèguesrépublicainsdel’AssembléelégislativeduTexasnepensentpasquel’amourquemafemmeetmoiavonsestassezbonpourfaireunengagementàvielesunsenverslesautresTropc’esttrop!CoupezlethéâtreBSVousembarrassezleTexas[theTexasLegislatureRepublicancolleaguesdon’tthinkthelovemywifeandIhaveisgoodenoughtomakealifetimecommitmenttoeachotherEnoughisenough!CuttheBStheatricsYouareembarrassingTexas”
Now my #TXlege Fellow Republicans don’t think the love my wife and I have is good enough to make a lifelong commitment to each other.
– Julie Johnson (@juliejohnsonTX) 22 October 2021
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