Bypass the Supreme Court?

So, I saw this cross my Twitter feed:

This gives the impression that Texas is preparing to ignore the Supreme Court ruling. That would be surprising, and in fact, the actual facts are a bit different:

He said his office believed state religious freedom laws would allow clerks to refuse to issue marriage licenses to same-sex couples if they have sincerely held beliefs that prohibit them from doing so, and if there was someone else present – like a deputy – who would be willing to service the couple.

So, it’s not that Texas is going to deny same-sex couples a marriage license. Rather, some government agents empowered to issue licenses might decline to do so, leaving it to others to do so. Paxton went on to say that anyone who tried it should expect to get sued. (That’s for sure!)

This may or may not be legally defensible (I am not a lawyer), but I think it’s wrong. If it’s part of your job to issue marriage licenses, it’s part of your job. If government provides a service, its agents should provide that service to everyone entitled to receive it, without adding additional inconvenience for applicants you’d rather not serve. (ASIDE: This principle is routinely flouted in applications for firearms permits, and that too is an outrage.)

But let’s suppose that Texas really were going whole hog, and simply ignoring the Supreme Court ruling. That would certainly be wrong. It’s also exactly what the Democrats were talking about doing if they lost in King v. Burwell (the Obamacare subsidy case). From the pages of the New York Times:

Luckily the Constitution supplies a contingency plan, even if the administration doesn’t know it yet: If the administration loses in King, it can announce that it is complying with the Supreme Court’s judgment — but only with respect to the four plaintiffs who brought the suit.

This announcement would not defy a Supreme Court order, since the court has the formal power to order a remedy only for the four people actually before it. The administration would simply be refusing to extend the Supreme Court’s reasoning to the millions of people who, like the plaintiffs, may be eligible for tax credits but, unlike the plaintiffs, did not sue.

The whole matter became moot when they won the case, but back when they looked likely to lose, this scheme was the talk of the town. We certainly never saw anyone from the White House rule it out.

The analogous scheme regarding Obergefell would have been to issue marriage licenses to the 14 plaintiffs, but otherwise ignore it. I trust that progressives have no trouble seeing that such a response would be lawless and wrong. But that’s exactly what they wanted to do prop up Obamacare.

Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: