Texas AG Takes Supreme Court Judges to School

I have really come to admire Texas Attorney General Ken Paxton. After suing the Obama administration more than forty times in the last eight years, the Texas attorney general has now asked the Texas Supreme Court to stick to judging instead of lawmaking and to limit the reach of the Supreme Court’s same-sex “marriage” decision, Obergefell v. Hodges. In doing so, Paxton’s brief gave the judicial branch an excellent primer on the limits of its authority.

The Texas attorney general has told the Texas Supreme Court that the Obergefell ruling does not require Texas to apply all the state’s laws related to heterosexual, natural marriages to same-sex “marriages.” The point of the lawsuit isn’t whether the state Legislature should, for policy reasons, treat both types of marriages the same for all purposes, but whether the state’s courts should apply the Obergefell decision in a fashion that takes those decisions away from the state Legislature.

‘Sloppy’ Talk Makes for ‘Sloppy’ Decisions

The Texas attorney general’s brief begins with the following noteworthy statement to which I would add a hearty Amen! “State courts tasked with applying Obergefell should bear in mind foundational concepts of federal jurisdiction that are often ignored in the regrettably sloppy public discussion of U.S. Supreme Court rulings.”

Indeed, the public discussion about what the “ruling” in Obergefell did and did not do has been sloppy. In fact, as I’ve previously noted, it’s been sloppy even within the office of Tennessee’s attorney general. What’s been sloppy is the jurisprudential fact that it is the “judgment” of the Supreme Court that is key, not the opinions of the justices.

Opinions Are Not the Constitution

As Attorney General Paxton explained:

A federal court may or may not choose to write an opinion to explain the basis for its judgment, but every word of that judicial opinion does not thereby become constitutional law that binds other branches of the state and federal governments. While the judgment in Obergefell is authoritative, Justice Kennedy’s lengthy opinion explaining that judgment is not an addendum to the federal constitution and should not be treated by state courts as if every word of it is the preemptive law of the United States. (emphasis in the original)

And that leads to the next important jurisprudential fact that Paxton noted and about which we’ve gotten sloppy: “[A] federal district court judgment against state officials does not amend the Texas Constitution or the Texas Family Code. And it most certainly does not require state courts to act as if those provisions of Texas law no longer exist.”

In other words, there are laws in Texas that the Obergefell Court did not rule on, and they are still good law until some court rules that they, too, are invalid or the Legislature changes them.

Different Issues Must Be Treated Differently

Attorney General Paxton summed up the preceding statements by noting that state judges cannot confuse “what five Justices of the U.S. Supreme Court said in explaining” the judgment in Obergefell—a right to marry case—with “different constitutional questions in a different case”—cases deciding how laws applicable to heterosexual couples apply to same-sex couples.”

For example, incest laws prohibit siblings, a brother and a sister, from marrying, ostensibly because of genetic abnormalities should they reproduce. But should we apply that “equally” to two brothers who want to marry even though they can’t produce offspring?

To allow marriage between the brothers and not between brothers and sisters because one can’t produce offspring and the other can is to treat them differently, arguably a violation of equal protection according to liberals. But to treat them differently is to recognize that the two sexual combinations are, in fact, different, an anathema to liberals. Can the Legislature treat the two differently, or does Obergefell require that they are treated the same?

Obergefell didn’t decide that question, and Justice Kenney’s majority “opinion” in that case can’t be mechanically applied to decide this different kind of case.

Federalism and the Rule of Law Are at Stake

The Texas attorney general concluded by emphasizing why state judges should not willy-nilly rewrite and reinterpret state laws to make them “fit” this new kind of marriage, which the existing statutes did not contemplate. “Principles of comity, federalism, and the rule of law should make state courts particularly wary of using the federal constitution to expand upon newly created substantive due process rights that have the effect of undoing the work of state lawmakers,” he said.

In other words, state judges should not abdicate the state’s rights relative to family law to federal judges (“comity” and “federalism”). And they shouldn’t engage in legislating from the bench (the “rule of law”); legislating is the “work of state lawmakers.”

What Will Our Legislators Do?

This session, Tennessee’s legislators will have a chance to vote on bills designed to prevent state courts from “undoing the work of state lawmakers” and help them stick to judging the law, not rewriting it. Let’s hope our legislators will stand up for federalism and the rule of law in Tennessee as well as Attorney General Paxton did for Texas.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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