As federal courts tell more and more states that they must allow same-sex marriage, it seems one of the few remaining holdouts is bracing for the inevitable. Texas, which hates to be messed with and loves to hate “non-traditional” marriage, has come up with a bill that would punish state clerks who issue marriage licenses to gay couples.
The 5th U.S. Circuit Court of Appeals is currently considering whether to overturn same-sex marriage bans in Texas, Mississippi and Louisiana. In anticipation of what he considers to be an unfavorable ruling, state Rep. Cecil Bell (R-Magnolia) has proposed a bill that would strip state employees of their salaries and pensions should they “recognize, grant, or enforce a same-sex marriage license.”
This would effectively mean that state employees could be fired (or at least pressured to quit) simply for observing a federal court’s decision and respecting the rights of others. That a state would even entertain this idea is shocking.
And yet it gets worse. The legislation includes a provision that would force state courts to rule against anyone who challenges this bill, should it pass. Apparently, Bell and his supporters believe no one should have the right to question what they do – a clear sign that some lawmakers have no interest in the democratic process.
Since there are some clear constitutional violations in play here, Bell’s proposal features an attempt to justify its legality – but fails miserably to do so.
“The State is not subject to suit in law or equity pursuant to the eleventh amendment of the United States Constitution for complying with the provisions of this section, regardless of a contrary federal court ruling,” HB 623 states.
That argument doesn’t fly. The 11th Amendment would actually allow a government employee to obtain an injunction against the head of a state agency if he were penalized for issuing a same-sex marriage license. And if sued in their capacity as individuals, state officials are liable for monetary damages if they violated clearly established constitutional rights. Plus, the U.S. Department of Justice could sue Texas and obtain an order preventing the state from terminating employees who merely complied with the U.S. Constitution. So despite what Texas may think, the 11th amendment would not allow it to ignore a federal court ruling in favor of marriage equality.
As usual, Texas is trying to claim that its rights as a state supersede whatever federal courts decide. Unfortunately for Texas (but fortunately for everyone else), that issue is long settled: federal law takes precedent over state law in most cases. That is partly what the U.S. Civil War was about, and one would think that after 150 years Texas would get used to the idea of obeying federal legislation.
Should HB 623 pass, it will surely be challenged in court. And since it seems unlikely that a judge would be willing to enforce a law that takes away his or her power to make decisions, there is little chance that such a challenge would be tossed out as the legislation commands.
To be sure, this development in the Lone Star State is troubling. It shows just how far the Religious Right and its allies are willing to go to codify their hatred. Apparently, some people hate marriage equality so much that they are willing to undermine the Constitution, ignore individual liberties and trample on human dignity just to enforce a narrow religious dogma.
That is shocking indeed.