Gay Marriage and State Sovereignty 1

There has been a lot of discussion recently in regards the recently proposed House Bill 623. This bill essentially proposes to allow Texas to circumvent federal court decisions in regards to declaring gay marriage bans unconstitutional. However, rather than continue the discussion of whether gay marriage should or should not be legal, this bill poses some interesting questions in regards to a state’s ability to circumvent the federal courts.

The Texas attorney general has already appealed the previous federal court decision from February of last year to the 5th circuit courts, and oral arguments on that issue will be taking place imminently. However, this bill appears to be proposed as a legislative mechanism to avoid the courts entirely. The strangest thing about this to me is that it is being proposed BEFORE the judicial avenues have been exhausted, which makes little sense, as it could be rendered effectively moot by a favorable outcome in the 5th circuit courts by the attorney general.

As an attorney, from a procedural standpoint, this is a fairly troubling issue as the intent is clearly to strip power from the judiciary. Though the chances of success may be low, the intent is still there and still bothersome regardless. The methodology of this attack seems to hurt its own legitimacy as well, as the attack is based on protecting state sovereignty over the issue of marriage, however it is ignoring the legitimacy of the judiciary. The point of protecting state sovereignty I can completely get behind, however the better mechanism of doing this is through the courts, exactly as the attorney general is doing.

Trying to protect sovereign powers by ignoring others is an inherently flawed plan, and only serves to give ammunition to those who choose to disrespect Texas as a whole. Perhaps this bill is meant as another jab in the “Texas should secede from the union” narrative, and I am giving it too much credit for being a serious concept, but if it is a legitimate attempt to do what is is proposing, then it definitely gives me pause as to what kind of precedent the legislature plans to set with this. The ends don’t always justify the means, and even the most staunchly anti-gay marriage advocate probably wouldn’t support a complete erosion of the judiciary. If a state legislature could legally overrule a federal court decision, the effects would go far far beyond the gay marriage issue, and there is no clear line to where that power would end.

This seems very much a case of looking for short term gain at the cost of long term damage to the system. The nature of the political system makes this type of thing common, however, now more than ever, I wish people would try to make sure they consider ALL the consequences of things, rather than just ones that they choose to.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at

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