The Attorney General's Bad Legal Advice

It was reported on February 6, 2016, that a Mesquite, Texas Justice of Peace, Bill Metzger, had announced his refusal to perform same-sex marriages. He based his refusal on a legal opinion issued by Texas Attorney General, Ken Paxton, to Texas government officials shortly after the U.S. Supreme Court ruled same-sex marriages were lawful. You might recall that Paxton, who has been indicted for fraud and violations of security law, issued a politically motivated legal opinion to the effect that state officials could refuse to perform their governmental functions if to do so would violate a sincerely held religious belief. Based on this so-called legal opinion, a few county clerks  refused to issue marriage licenses to same-sex couples. Consequently, there was at least one lawsuit filed in Texas wherein the same-sex couples prevailed.  You may also recall the clerk in Kentucky that refused to issue a marriage license, lost her case, and was ultimately jailed for failure to comply with a court order. Nevertheless, Judge Metzger wanted to make a political statement or a religious statement. I am sure a suit will be filed against him and he is certain to lose.

    As a legal issue, this one is not even close. A governmental official takes an oath to faithfully perform the duties of the office. Government officials cannot decide for themselves which duties they will not perform based on personal religious beliefs. Metzger’s choice is to do his job or resign. 

    It is unfortunate that Paxton has not withdrawn and high-ranking Republican politicians have not spoken out against this faulty legal opinion. Governor Greg Abbott, a former justice on the Texas Supreme Court, has remained silent. Ted Cruz, who claims to be a legal scholar, and Mike Huckabee have actually encouraged officials to disregard the Supreme Court’s opinion. By doing so they do a disservice to public officials who are ignorant of the law, the general public and taxpayers.

    Roger Williams, framer of the Charter of Rhode Island, is considered to be the earliest proponent of religious liberty and tolerance in the New World. Based upon his thought and writing, Thomas Jefferson and James Madison authored the Declaration of Independence and the Bill of Rights of the U.S. Constitution.

    Here is what Williams had to say about the proper relationship between Church and state:

    “The civil sword may make a nation of hypocrites, and anti-Christians, but not one Christian.” “Forcing of conscience is a soul rape.” Persecution for conscience hath been the lancet that layeth the blood of kings and kingdoms.” “Man hath no power to make laws to bind conscience.” “The civil commonwealth and the spiritual commonwealth, the church, not inconsistent, though independent, the one on the other.” “The civil magistrate owes to false worshipers, (1) permission, (2) protection.” (emphasis added) “No person within the said colony, at any time hereafter, shall be in any wise molested, punished, disquieted, or called in question for any differences in opinion, in matters of religion, who do not actually disturb the civil peace of our said colony...”
    The wisdom of Roger Williams and the doctrine of separation of church and state is  inarguable. It protects the state and, just as importantly, the Church.