Contrary to what you may learn on Twitter, Justice Willett is capable of thought much deeper than humorous tweets about the three Bs: bacon, Blue Bell, and Baylor. His concurring decision in In re State of Texas is a passionate defense of procedural regularity, even in the most controversial of cases involving same-sex marriage.
The facts of the case are straightforward, and disturbing. Texas law requires a judge to notify the Attorney General before declaring a law unconstitutional. A judge in Travis County (Austin) ignored this law. The judge declared the state’s same-sex marriage amendment unconstitutional, then a couple was immediately married, after which the case was non-suited as moot to prevent an appeal. This chicanery makes the procedural shenanigans in the Federal Courts look tame. The Attorney General, after learning about the case, sought mandamus.
Willett agrees that the case is moot, but that doesn’t give the Travis County judge a free pass:
In light of Obergefell, the case is entirely moot, so the Supreme Court of Texas unanimously dismissed the case as moot. However, Justice Willett concurred in judgment to explain the close connection between procedure and the rule of law. I write today not to belabor a societal debate but to underscore a legal point presumably beyond debate: Laws matter. When John Adams enshrined the ideal of “a government of laws and not of men” into the 1780 Massachusetts Constitution, he upended things, declaring that citizens should be governed by clear laws consistently applied, not personal whims.2 Adams was echoing Aristotle, who two millennia earlier wrote, “law should govern.”3 The Rule of Law is one of America’s—and Texas’s—foundational presumptions. In this case, regrettably, Texas law was frustrated rather than followed.
Unfortunately, rancorous cultural disputes seem to induce jugglery, by lawyers and judges alike. In 2014, for example, a Texas court of appeals rebuked a trial court for doing the very thing that happened here—declaring Texas marriage law unconstitutional without first alerting the attorney general.10 But it is precisely in divisive, consequential cases when by-the-book fastidiousness by courts is most vital, to blunt even the appearance of evasive corner-cutting or politicized judging.
Willett explains that courts are not free to waive procedural safeguards.
Despite the constitutional stakes (or perhaps because of them), the trial court failed to comply with the Legislature’s unqualified command that the State’s chief legal officer be afforded the opportunity to defend the constitutionality of Texas law.9 When violations of law slip uncorrected through the cracks of judicial review (as when a case is dismissed as moot), it may seem that the beneficiaries of such violations receive a free pass. The pass is not free. It comes at the expense of the Rule of Law. Here, the Legislature’s notice mandate is unsubtle and unequivocal, as was the trial court’s failure to follow it.
These principles hold true, regardless of what judges view as the “right side of history.”
This was an invalid invalidation. No matter the cause du jour, no matter the perceived exigencies, Texas law forbids the striking down of Texas law without first respecting the attorney general’s statutory opportunity—and constitutional duty—to defend it. Every Texas jurist swears allegiance to the Rule of Law, vowing to “preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.”11 That solemn oath comes first—always— not our ideology, not our legacy, and not our desire to be fêted as on the “right side of history.”
My focus today is legal, not cultural. In a judicial system that demands no-favorites adherence to clear and predictable legal rules, furtiveness (to tilt the playing field) and faithfulness (to keep it level) cannot coexist. Faithfully applying the law cannot mean short-circuiting one Texas law in order to strike down another.
A law may be unfashionable. It may even be unconstitutional. But it cannot be undefended.
I wish more judges would take this lesson to heart. We can all disagree about substance, but procedure is the glue that holds together the rule of law.