ActRight

RE: Opinion Request RQ-04360KP

Dear Attorney General Paxton,

I’m writing to express my support of Rep. James White’s request for an opinion clarifying that the marriage laws of the state of Texas defining marriage only as the union of one man and one woman remain in effect despite the narrow 5-4 US Supreme Court ruling in Obergefell v Hodges. (RQ-04360KP)

The position articulated by Rep. White is quite sound and enjoys overwhelming legal support. In September 2015 in the wake of the narrow Obergefell ruling purporting to require every state to redefine marriage, over sixty prominent legal scholars issued an opinion advising states not to accept the imposition of same-sex marriage as binding precedent on the states, but rather binding only on the specific plaintiffs in that case. This position was based upon a thorough assessment of the US Constitution, consideration of the majority and minority opinions in Obergefell, and relevant examples from history including the views of James Madison and Abraham Lincoln.

The purported imposition of same-sex marriage on Texas and other states is anti-constitutional and illegitimate. Moreover, as Rep. White forcefully articulated in his request for an opinion, the state of Texas has not repealed or amended its marriage laws in response to Obergefell. Further, as Rep. White makes clear in quoting from Pidgeon v Turner, “[N]either the Supreme Court in Obergefell nor the Fifth Circuit in De Leon ‘struck down’ any Texas law. When a court declares a law unconstitutional, the law remains in place unless and until the body that enacted it repeals it.” This legal principle was made perfectly clear in the Fifth Circuit’s ruling in Texas v United States, finding, “The federal courts have no authority to erase a duly enacted law from the statute books, [but can only] decline to enforce a statute in a particular case or controversy.”

Rep. White is exactly correct in his presentation of the issues when he notes, “The federal judicial power extends only to the resolution of cases and controversies between litigants. The fact that a federal district court has enjoined state officials from enforcing the Texas marriage laws in no way affects the existence or validity of those laws with regard to private parties, who are not even bound by the Fourteenth Amendment — let alone the Supreme Court’s purported interpretations of it.”

I call on you as Attorney General to issue an opinion clarifying that neither Obergefell v Hodges nor DeLeon v Perry requires private citizens to recognize homosexual marriages, and neither decision requires or allows them to disregard the laws of Texas that continue to define marriage only as the union between one man and one woman.