If Paxton merits disbarment, so does Abbott

Gov. Greg Abbott, talks to reporters as Attorney General Ken Paxton listens at a news conference at the State Capitol in February. Paxton's legal woes now include a threat of disbarment because of his actions after the Supreme Court ruled on gay marriage. But if he warrants investigation by the State Bar, why not Abbott, who acted similarly? less Gov. Greg Abbott, talks to reporters as Attorney General Ken Paxton listens at a news conference at the State Capitol in February. Paxton's legal woes now include a threat of disbarment because of his actions ... more Photo: Tom Reel /San Antonio Express-News Photo: Tom Reel /San Antonio Express-News Image 1 of / 1 Caption Close If Paxton merits disbarment, so does Abbott 1 / 1 Back to Gallery

Should Gov. Greg Abbott be disbarred because of his actions after the U.S. Supreme Court's historic ruling on gay marriage last year?

It's a fair question given that the State Bar, according to reports, is investigating Attorney General Ken Paxton's "possible violation" of its rules of professional conduct for what he did after the ruling. An adverse ruling could result in disbarment. He is already facing criminal charges stemming from claims that he misled investors in another job before he took office.

Paxton issued an opinion in June that pretty much told county clerks that they could ignore the high court's ruling if they were acting on their religious beliefs.

Most of the media reports said clerks who were initially reluctant — or confused — after the ruling were awaiting legal guidance. Paxton gave it to them, warning them, however, that because each case differs, they might face fines and other legal actions for following his sage counsel. In other words, go ahead and do it, but be prepared for legal consequences.

At the time, I thought the top legal guy in the state was telling public officials that they don't have to follow the law, though couching it in fail-safe language. But the same can be said of Abbott.

Two sides of the same coin. Paxton was telling individual officials what he thought they could get away with. Abbott was telling his state agencies that no public employee should be sanctioned if that employee was acting on religious beliefs.

The State Bar can't comment on specific, pending disciplinary cases. So, to determine which parts might have been violated, let's go directly to the code.

A section about "misleading legal argument" states a pretty basic notion: "Legal argument based on a knowingly false representation of the law constitutes dishonesty."

But this appears to cover matters being adjudicated, and Abbott and Paxton can say that — no pun intended — good-faith differences of legal opinion do not constitute misleading argument.

There is a portion of the code that says, "a lawyer shall not willfully, in connection with an adjudicatory proceeding … manifest by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity."

There's "adjudicatory" again. And Abbott and Paxton were saying they were fighting bias — against people of faith. But I've not seen opinions from them that public employees, on account of their religion, can deny services because someone is, say, divorced or "living in sin" or an atheist, practices a faith in which Allah and the Prophet are central (except if it's a matter of refusing them entry as refugees), or had an abortion or wants birth control through Medicaid funds. Seems clear: Their target was specifically gay people. Everyone else gets a marriage license.

But, perhaps, the provision that might fit best when pondering whether the two violated the code: A lawyer shall not "engage in conduct constituting obstruction of justice."

The highest court in the land had just legalized gay marriage, and the Texas governor and attorney general were pretty much urging public employees to ignore that. They argued that religious beliefs (separation of church and state, anyone?) trumped the ruling.

That sounds like obstruction — and a slippery slope.

So, can a public employee who is an atheist deny a marriage license to a couple because the vows will take place in a church? No, that would be demonstrating clear hostility toward religion — just as denying marriage licenses expresses hostility toward same-sex couples.

After the ruling, Abbott said, "No Texan is required by the Supreme Court's decision to act contrary to his or her religious beliefs regarding marriage."

So, if Paxton merits investigation, arguably, so does Abbott.

Opening the door for public employees to deny marriage licenses to same-sex couples stands out as a clear indicator of anti-gay bias, and this is no more palatable coming from a churchgoer than from a