Nullification battles were echoes from last session
JAMES RUSSELL | Contributing Writer
Ahead of last year’s Obergefell decision legalizing same-sex marriage, state Rep. Cecil Bell, R-Magnolia, filed a slew of bills blocking enforcement of the pending decision. One of Bell’s bills was expected to pass.
The Preservation and Sovereignty of Marriage Act, as it was called, would have withheld pay from county clerks issuing marriage licenses to same-sex couples. It died on the floor.
Before the session ended, Bell said his bills were not just about marriage equality — which he opposes — but “state sovereignty.” In Bell’s minds, each state in the United States has the right to regulate, for instance, who can and can’t marry.
With marriage equality now legal, Bell and other conservative state lawmakers are now using the states’ rights to usurp not just marriage equality but other federal decisions regarding weapons, immigration and the environment.
Sen. Bob Hall, R-Edgewood, has already filed 33 bills ahead of the 85th legislative session, which begins Jan. 10, 2017. The staunchly conservative lawmaker so far has filed four bills usurping federal laws. One of those bills, SB 89, would allow the Legislature to refuse to enforce any federal law in violation of the state constitution. That means language criminalizing sodomy and banning same-sex marriage still in the state constitution would be enforced despite the Supreme Court finding both unconstitutional.
When asked by The Dallas Morning News, Hall said he did not file SB 89 in response to the Obergefell decision. His focus is the enforcement of federal gun laws. But if the bill passes, the broad language could have an impact on same-sex marriages in Texas.
“If it does, it does,” Hall told the News.
The battle to preserve the Republic of Texas is not the only battle facing LGBT activists. Hall again filed a bill specifically preempting local nondiscrimination ordinances. SB 92, known as the Intrastate Commerce Improvement Act, would make protections not in the state constitution “null and void.”
Three states have already enacted forms of the Intrastate Commerce Act. Tennessee in 2011, Arkansas in 2015 and North Carolina in 2016.
North Carolina’s HB 2, also known as the Public Facilities and Privacy Act, is the most sweeping example of preemption legislation, impacting all local ordinances, ranging from minimum wage laws to LGBT protections. But its target, the city of Charlotte’s nondiscrimination ordinance, became known as the “bathroom bill” because it limits bathroom access to people based on sex and not gender identity or expression.
Like Hall’s bill, Arkansas’ and Tennessee’s were more explicit: they narrowly focus on LGBT nondiscrimination ordinances.
LGBT activists haven’t even seen all the legislation they’re up against this session. But they have gotten a glimpse of what’s to come. In a letter to Lt. Gov. Dan Patrick, Attorney General Ken Paxton listed 10 priority pieces of legislation for the upcoming legislation, including specific legislation protecting religious liberty. Paxton’s letter argues the laws would protect an individual’s religious conscience by carving our narrow exemptions for counselors, foster care providers, business owners and churches. Indeed, Paxton argues this legislation protects the “freedom of conscience of all Americans.”
On Nov. 30, Patrick announced another legislative priority: the Sermon Safeguard. The goal, Patrick said in a statement, is to “protect the most fundamental First Amendment religious liberty rights by protecting pastors from forced testimony and shielding sermons from government subpoena power.” The legislation was filed in response to lawyers with the City of Houston who subpoenaed five pastors in a lawsuit over the Houston Equal Rights Ordinance, which they opposed.
That legislation was not filed by press time.
This article appeared in the Dallas Voice print edition December 2, 2016.