Disputed Texas Case Exemplified Judicial Restraint, Not Activism
As I have discussed previously (here and here), all judges in Texas are subject to partisan elections, and an incumbent justice on the Texas Supreme Court (all nine members of which are Republicans) named Paul Green is facing a March 1 primary challenge by an evangelical speaker and radio talk show host named Rick Green. The potential for name confusion may be deliberate, since two other seats on the court (neither held by a justice named Green) are also on the ballot. Rick Green, who has no prior judicial experience (and very little relevant legal experience) claims that he was motivated to run against Justice Paul Green, an 11-year veteran of the Texas Supreme Court, because — out of the thousands of cases he has participated in — Paul Green joined the court’s 5-3 decision in Texas v. Naylor, the so-called “gay divorce” case.
Naylor was decided on June 19, 2015, shortly before the U.S. Supreme Court issued the controversial Obergefell v. Hodges decision, which “recognized” a constitutional right to same-sex marriage. In Naylor, the Texas Supreme Court dismissed an appeal on procedural grounds (for lack of “standing”), declining to hear the merits of the Texas Attorney General’s challenge to a divorce granted by a Texas trial court to a lesbian couple who were married in Massachusetts. Naylor found that the Attorney General could not maintain the appeal because he had intervened in the case too late — after judgment was entered in the trial court. Prior to Obergefell, Texas did not recognize same-sex marriage.
Rick Green contends that Naylor was an activist decision that undermined Texas’s commitment to traditional marriage. Recently, Rick Green’s campaign circulated an endorsement email from Rick Green’s WallBuilders colleague, David Barton, containing this statement: “[J]ust prior to the U.S. Supreme Court’s decision in favor of homosexual marriage last summer, the Texas Supreme Court also had five of our Justices hand down a decision that was in favor of homosexual marriage. Can you imagine that? Here in conservative Texas we have five judicial activists on the State Supreme Court?” (Emphases added.)
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