Texas Attorney General Thwarted Same-Sex Marriage Ruling, What’s Next?

Texas Attorney General Ken Paxton released an opinion telling district clerks and judges that they could refuse to issue same-sex marriage licenses based on religious rights. But is it ethical for him to do so?

By David BrownJuly 7, 2015 2:30 pm|

On June 26, 2015, the United States Supreme Court legalized same-sex marriage in a historic ruling. But Texas Attorney General Ken Paxton had his own opinions. He told county clerks that they could deny marriage licenses to same-sex couples if it violated their religious beliefs. Paxton also said  if clerks faced litigation for their refusal, as happened in Hood County, there would be lawyers there to help, pro bono. Is it ethical for Texas’ top attorney to issue this edict? Texas attorneys, 150 of them, to be exact, think it’s enough for disbarment.

To help Texas Standard sort through the situation Robert Tobey of Johnston-Tobey, P.C., a commercial litigation firm in Dallas and vice chair of the Dallas Bar Association, weighs in.

Glen Maxey, Texas Democratic Party’s County Affairs Director and the first openly gay legislator in Texas, filed the complaint against Paxton. He alleged that Paxton had violated ethics rules in two ways.

Tobey says Paxton had a conflict of interest, first of all. As Attorney General, he has one client — the state of Texas. Maxey’s filed complaint states that Paxton violated his duties to his client, Texas, because it “panders to the Tea Party base that elected Mr. Paxton to office.”

The second allegation, Tobey says, is that Paxton violated “his oath to follow the law and follow the fact” by issuing a “non-binding opinion” to district clerks and judges.

The best course of action would’ve been to refrain from issuing any opinion, Tobey says, but that’s not what Paxton chose to do. The Religious Freedom Restoration Act is quoted extensively in Paxton’s opinion, but Tobey says the lines are gray between what people are allowed to do in expression of religious rights versus what will be protected under the Constitution.

Though the complaint has been filed with the Texas State Bar, the likelihood of Paxton’s law license being revoked is low, Tobey says. Despite there being thousands of complaints, 80 percent of them are thrown out since they are not actual violations of disciplinary rules. Only about five percent of cases were processed last year, Tobey says.

It looks like Paxton can keep his law license, for now.