It looks very likely that the Fifth Circuit Court of Appeals will strike down the same-sex marriage bans in its jurisdiction. This isn't surprising. Yet, Texas has decided it will throw a temper tantrum. House Bill 623 would take away the salary of any clerk attempting to comply with court rulings striking down the bans.
When the Supreme Court of the United States passed on hearing appeals from states defending their same-sex marriage bans in 2014, the de facto effect was making same-sex marriage the law of the land within those jurisdictions. In fact, I concluded (and many legal eagles far smarter than myself concluded) that this was tacit approval of the lower court decisions. Those lower court decisions themselves played directly on the language in SCOTUS's previous decision striking down the Defense of Marriage Act (DOMA). Although there have been a few exceptions (Louisiana and Puerto Rico, as examples) nearly all lower courts have ruled against same-sex marriage bans.
And it very much appears that the Fifth Circuit will also rule this way. While it's never guaranteed from the back and forth of court proceedings, Towleroad has an excellent analysis of why we're most likely going to see the Fifth Circuit judges follow the vast majority of their colleagues in other jurisdictions. The point, summarised, is this: the language of the judges in discussion with lawyers and with each other means that they've "tipped their hands" so to speak and the result will likely be a 2-1 decision overturning the bans.
The writing is on the wall, Texas. The jig is up. Yet this is a legislature who went so far as to alter timestamps in the debate over HB 2, the notorious reproductive rights bill which was stopped only temporarily by the 11 hour filibuster of Wendy Davis. So it won't be surprising that they've come up with a plan even if (well, okay, when) they lose on the merits in the courts: House Bill 623.
Here's the salient parts of HB 623:
* No state or local government official may participate in the recognition of a same-sex marriage.
* If such an official does so, they will be denied salary, pension, etc.
* If it is done, well, it can't be paid for with public funds anyway.
* State courts must rule against anyone who legally challenges HB 623, never mind separation of powers or checks and balances between branches of the state government.
* Supremacy clause? What supremacy clause? *hand waving* There's no violation here of federal power. Federal court rulings saying otherwise can be safely ignored.
Uh... Yeah... Texas, you tried this once before after the Civil War. You failed, as spokesman for Equality Texas Daniel Williams pointed out.
This bill is retreading very well-established precedent here. In 1869, the U.S. Supreme Court decided in Texas v. White that no, Texas does may (sic) not ignore federal law whenever it wants. Beyond it ignoring federal law, it would actually punish state employees who follow the law.
So, Texas, good luck with your temper tantrum. I know five year olds who have a better understanding of what to do when they lose fair and square. Oh, to be able to send the lot of you down in the pink granite building in Austin to time out for, oh, at least four years. That ought to do it.
Image via Getty.