Texas Lawmaker Still Fighting Gay Marriage

     DALLAS (CN) – A Texas state lawmaker on Monday asked his attorney general to determine whether state agencies “raced” too quickly to recognize same-sex marriage benefits.
     Rep. Dan Flynn, R-Canton, said the state need not issue same-sex licenses or grant such spouses benefits because the Legislature has not appropriated any money for it.
     The Employees Retirement System of Texas granted state benefits to same-sex spouses after the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges on June 26 struck down state bans on same-sex marriage.
     The ruling invalidated a voter-approved amendment to the Texas Constitution that defines marriage as between a man and woman.
     The Department of State Health Services then removed “man” and “woman” spaces from its marriage applications and inserted “applicant” spaces instead, Flynn said.
     “Specifically, my question is what procedure a state agency should follow if the U.S. or Texas Supreme Court recognizes a new constitutional right and compliance with that ruling requires the expenditure of additional state funds,” Flynn’s July 27 letter states .
     “I would submit that because only the Legislature may appropriate funds, an agency must follow the state law process for receiving additional funding needed to comply with a court order.”
     Flynn claims that all gay marriage licenses issued by county clerks are void because the Legislature has not acted.
     “Texas law remains silent as to marriage other than between one man and one woman,” he wrote. “Therefore pursuant to the non-delegation doctrine, Texas state agencies, including DSHS, cannot act without authorization from the legislature. Without state agency action to implement same-sex marriage, local county clerks lack authority to award same-sex marriage licenses.”
     Flynn asked Attorney General Ken Paxton to issue a non-binding legal opinion to determine whether action by the Legislature is required to implement same-sex marriage in Texas.
     “Without revision to Texas statute, are marriage licenses issued to same-sex individuals since June 26, 2015, valid?” Flynn asked. “Absent further action by the Texas Legislature, do state agencies have authority to adopt policies and procedures to grant other benefits, specifically including employment benefit programs and adoption, arising under Texas law to same-sex couples? In the event that the Texas legislature does not amend current law, what action could the federal government take to implement same-sex marriage?”
     Flynn said the Texas Family Code could be “easily rewritten” to allow same-sex marriages, but that state lawmakers have not met or acted in response to Obergefell.
     “Although the Texas Constitution vests legislative powers solely with the Texas Legislature, no action has been taken that would create same-sex marriage under Texas law,” Flynn wrote. “Absent legislative action, no Texas law defines or otherwise establishes marriage between homosexual couples. Can the state award what does not exist?”
     Flynn said county clerks may not issue marriage licenses if applicants fail to meet the state definition of marriage being between one man and one woman.
     “It does not, for example, provide for a marriage between two persons, whereas the federal court could have struck any specificity defining two persons as those of opposite sex,” Flynn wrote. “Yet, Texas county clerks have proceeded to issue marriage licenses despite the Texas state law provisions that remain even after the federal district court’s declaration as to the unconstitutionality of ‘law denying same-sex couples the right to marry.’ As all legislative powers are vested with the Texas legislature, state agencies and local government officials cannot issue same-sex marriage licenses without revision to Texas statutes by the Texas Legislature providing for the same.”
     Paxton was criticized roundly for his first non-binding legal opinion on Obergefell. Two days after the Supreme Court ruling, he urged county clerks and judges not to issue same-sex marriage licenses or perform such marriages if doing so would violate their religious beliefs. He acknowledged that local officials would likely be sued if they followed his recommendation.
     Paxton said the Supreme Court “again ignored the text and spirit” of the Constitution in legalizing same-sex marriage and “manufacture[d] a right” that does not exist.
     “In so doing, the Court weakened itself and weakened the rule of law, but did nothing to weaken our resolve to protect religious liberty and return to democratic self-government in the face of judicial activists attempting to tell us how to live,” Paxton said at the time.
     “Now hundreds of Texas public officials are seeking guidance on how to implement what amounts to a lawless decision by an activist Court while adhering both to their respective faiths and their responsibility to uphold and defend the U.S. Constitution.”
     Former Rusk County Clerk Joyce Lewis-Kugle resigned on July 9 after refusing to issue same-sex marriage licenses. Rusk County District Attorney Michael Jimerson said he told Lewis-Kugle she could follow Paxton’s recommendation but she would probably be sued.
     “The Supreme Court is the law of the land ,” Jimerson said he told her. “You can either resign in protest or issue the licenses.”
     Hood County Clerk Katie Lang was forced to issue a same-sex marriage license on July 6 after refusing to issue them, citing Paxton’s opinion. She invoked her personal religious objections in refusing, but changed her mind and said other employees of her office would issue same-sex marriage licenses. She was sued in Federal Court by a gay couple who said they were “humiliated” by Lang and her staff when they tried to apply for a marriage license and were told there would be a weeks-long delay in getting updated forms from state officials. The couple pointed out that the forms were already available on the Internet.
     Flynn’s District 2 covers Rains, Hunt and Van Zandt counties, east of Dallas and just west of Tyler. Flynn, 72, is serving his seventh term in the Legislature. In 2008 he wrote a bill requiring that public documents be written only in English. He said it would encourage people to learn the language. He describes himself on his home Web page as a “noted conservative,” a businessman, banker and rancher.

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