I’m not looking for anything political with this. My friends and I were discussing and well none of us are lawyers (and we’re from Canada) so we were curious. Can he be disbarred for openly defying a SCotUS decision?
http://www.reuters.com/article/2015/06/29/us-usa-court-gaymarriage-texas-idUSKCN0P900F20150629
I don’t know whether Paxton’s actions meet the criteria for disbarment (I doubt it), but state attorney general and district clerk are elected positions that do not require that the candidate be a practicing lawyer.
The Texas Observer has been updating Gay Marriage Comes to Texas since Friday morning. It contains part of our Atty Gen’s statement:
So, he’s not defying the law at all. He’s telling underlings who wish to defy the law that they should get legal help.
The rest of that long article tells of the Texas counties that began marrying all comers on Friday. Which are mostly urban counties–including Amarillo, Midland & Waco in with the obvious Dens of Iniquity. One exception:
The slow counties were waiting for new forms or word from Austin before proceeding. In other counties, clerks just scratched out the obsolete terminology & proceeded to do the paperwork.
When business opens today, will we have a few sacrificial lambs refusing to fill out licenses because God told them not to? There will be legal help–but not from the State. And there’s probably more than one “team of attorneys” on the other side.
Paxton’s statement is interesting: “The strength of any such claim depends on the particular facts of each case.” How does helping complete a legal form for a civil procedure violate Freedom of Religion? Some of those couples will have religious weddings–but only at churches the “Truly Religious” consider nests of Hellbound Heretics.
Good times for lawyers!
There was a full page ad on the back page of the front section of yesterday’s Dayton Daily News: As communities of faith in the Miami Valley, WE DO SUPPORT MARRIAGE EQUALITY. Followed by a listing of a number of churches and synagogues.
Well, first he is telling any county court clerk that wishes to pose objections on religious grounds that they can and should delegate the responsibility as a reasonable accommodation. Here it is:
It is only after that paragraph he talks about the “everybody at the office has an objection” issue. First he states that the clerks are required by law to issue marriage certificates - so they can’t defy the ruling by issuing no certificates to anyone. Furthermore, he states that anyone refusing to issue certificates to same-sex couples will most likely be challenged.
Back on topic, I see nothing in his opinion that warrants disbarment. He says there is a 1st v. 14th conflict (which I suspect we are going to hear about a lot) that should be resolved via reasonable accommodation by the county clerks.
The local NPR had some great interviews of county clerks on this subject. The forms in question have “man” and “woman” for those who are wondering. The primary concern is that “defacing” the form invalidates it by law, whether or not it applies here, and could invalidate the marriage. I see no objection to the existing form, but then I am not sure that his failure to enforce that particular law is worthy of disbarment. I find that possibility silly at best.
Because the state cannot compel you to violate your “sincerely held religious beliefs” unless no reasonable accommodations can be made. He believes that delegation is reasonable since you still get your license from the same office. If that entire office objects, it is possible to get the license from another county - but that is where the “strength” of the claim would be tested.
So, brief and arguably inflammatory Reuters article aside - what would be the argument for disbarment? He is not blocking the counties that are issuing the certificates right now as I type.
Paxton may end up disbarred. He’s looking at potential felony charges regarding his involvement with the sale of securities in violation of Texas law (see here; he admits the actions but claims it’s already been administratively dealt with). If convicted of a felony charge he could lose his law license.
He also stole another lawyer’s pen, but seems to have not faced any consequences for that.
Paxton won’t get disbarred for writing this opinion, though, for the reasons set forth by RaffArundel.
No mens rea for theft.
I actually meant that to be more lighthearted, so substitute “took”. Text doesn’t always convey, I think.
One can see a possible justification there. Government agencies, especially regulatory ones, have a million zillion forms for every conceivable transaction they could partake in, always very specifically worded (often incomprehensibly), and the agency is able to do just exactly that for which there is a form, and nothing else. It is the way bureaucrats think. Just try it at the DMV someday – try to get something done that they don’t have a precise and specific form for.
And you don’t get to alter the wording on any form. There’s almost universal agreement that it invalidates the form. Just try THAT at any DMV and see what happens.
Now, how should this play in Texas or any other state for that matter? SS couples wanted to begin getting married immediately not even waiting until Monday – They get to be part of history that way, like getting first-day covers at the post office. Would any gay couple want to spend the rest of their married lives with a marriage license full of cross-outs and handwritten corrections? I bet there would be many couples saying emphatically NO to that. I bet there would also be many couples saying emphatically YES to that – Being part of history to get married on the very first day of the SSM decision with a partially hand-written customized certificate tailored for the purpose! (Sounds like a good topic for a poll!)
Trespass to chattels.
Neither the Governor or the Atty General, both against Gay Marriage, have used problems with updating obsolete forms as justification. They both complained bitterly but the only anti-Gay-Marriage recommendation they made was to County employees who may balk at performing actions not compatible with their religious leanings. These people have Constitutional rights & there are some pro-bono lawyers out there; but there’s no guarantee these righteous folk will win. The more rural counties have dragged their heels–but I haven’t heard of any religious complainants. Yet. Surely there wil be some well-orchestrated martyrs. Lawyers will be busy cleaning up the details.
A bunch of Gay Texans married on Friday & marriages will cotinue. Still problems with discrimination remaining.
By the various accounts I’ve seen, it was the local clerks nit-picking about getting the forms updated properly and not writing ad-hoc corrections in the margins, because they worried that there might be technical legal problems with the validity of that. Or so they claimed.
The Guv, Lt. Guv, and AG were just being the homophobic obstructionist asshats you expected them to be.
Generally, it is the application form where any cross-outs would be. It’s the actual Certificate of Marriage document, which is filled out at the wedding, and usually signed by the officiant & the witnesses that people usually have framed on their wall or something.
Here’s an example one from the first gay couple to get married in Minnesota, Sept 3. 1971.
At least in our own case in California, the Certificate of Marriage is the same thing as the application form, with some additional fields filled out by the officiant and the witnesses, and then certified by the county.
I raised a question earlier that I think would be interesting to comtemplate: Would first-day SSM couples want to have a marriage certificate with items crossed out and hand-written corrections in the margins, to correct the specific gender references?
I expect first-day SSM couples would be HOT-DAMN PROUD of the fact and would, in fact, be likely to display their certificate framed on the wall. I’ll bet many would just LOVE to have a certificate with hand-written corrections like that. Others might find it insulting to have to settle for certificates, the pre-printed version of which didn’t address them, but had instead to have hand-written corrections.
I know Ken Paxton personally. I haven’t spoken to him in over 10 years. He was kind of an egotistical blow-hard back then…a career politician. I would bet that he hopes to follow in his predecessor’s footsteps.
Since AG is an elected position, and the consensus in this thread seems to be that he probably can’t be disbarred, could he not be impeached?
Yes, according to the Texas constitution, the Attorney General, is an officer of the state that can be impeached.
The Texas Senate has 11 of 31 seats held by Democrats. They’d have to break off 5 of 20 Republican votes. It might be possible to find those 5 votes among the less socially conservative members of the Senate (Without knowing if that many exist in Texas :D) if he was simply flipping SCOTUS the bird. Except he’s not doing that. The same discussion about disbarment justification probably makes impeachment very hard.
My prediction: The AG will not be disbarred nor impeached, and same-sex marriage will go ahead in Texas despite whatever he says.
