Texas legislature advances a pre-emptive strike against the Supreme Court on marriage

|The Volokh Conspiracy |

Days before the Supreme Court will hear oral argument in cases challenging state bans on gay marriages, a committee of the Texas legislature has approved a bill that would broadly prohibit state employees from issuing or recognizing marriage licenses for same-sex couples. The bill provides:

(c) State or local funds may not be used for an activity that includes the licensing or support of a same-sex marriage.
(d) A state or local governmental employee may not recognize, grant, or enforce a same-sex marriage license.
(e) State or local funds may not be used to enforce an order requiring the issuance or recognition of a same-sex marriage license.

Under any conceivable rationale that the Supreme Court might give to require states to issue marriage licenses to gay couples (fundamental right, heightened scrutiny of sexual orientation discrimination, animus, irrationality, etc.), the Texas bill would be unconstitutional. The bill has another committee to clear and then must be approved by both houses and be signed by the governor, but no similar bill in the country seems to have gotten quite this far in this legislative season.

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