What is going on in Texas?
On Tuesday, Aug. 10, the Texas Supreme Court granted a petition sought by Texas Governor Greg Abbott and issued a stay of the temporary restraining order (TRO) District Judge Brad Urrutia entered Sunday, Aug. 8.
The TRO prevented arrest warrants from being issued, served and executed on Democratic state legislators whose absence from Texas prevents the Texas legislature from convening in a special session called by Abbott because the speaker of the Texas House of Representatives cannot assemble the two-thirds attendance required for a quorum.
While Judge Urrutia had scheduled an evidentiary hearing for Aug. 20 regarding the TRO, the Texas Supreme Court ordered the Democratic legislators to file their response concerning this controversy by Thursday, Aug. 12.
The effect of the stay by the Texas Supreme Court allows Governor Abbott and the speaker of the Texas House of Representatives to dispatch government agents to conduct a search and seizure operation to “snatch and grab” the Democratic legislators whose absence from Texas frustrates their aim at enacting laws some observers believe will intimidate and suppress voting by people of color.
Lawyers for Governor Abbott, the House speaker and the Democratic legislators will present competing arguments on whether Judge Urrutia had the required factual and legal basis for issuing the TRO.
The governor has the executive power to call for a special session. The House Speaker has the power to summon legislators to Austin for a duly convened special session. Legislators are duty-bound to appear for a special session.
The legal arguments will address the separation of powers question surrounding Judge Urrutia’s TRO to determine whether courts can prevent the state executive from dispatching governmental agents to compel state legislators to attend a special legislative session.
Another issue is whether deliberate absence from the State of Texas to prevent a quorum is an act of civil disobedience protected by the First Amendment to the U.S. Constitution (whether viewed as protected speech or protest) and, if so, whether arrest and involuntary sequestration to attain a quorum can meet the “strict scrutiny” standard courts must apply to governmental restraints on protected speech or protest.
That analysis involves deciding whether the governmental restraint involves a “compelling” governmental interest and – because the restraint involves the fundamental right of political speech – whether the restraint can pass “strict scrutiny” by being the least restrictive means of attaining the governmental interest deemed to be “compelling.”
The Texas Supreme Court could also punt on the whole matter by terming it a “political question” that is not appropriate for judicial resolution, something lawyers and judges call “justiciable.”
It seems clear that the legislators who fled Texas to prevent a quorum were engaged in conduct involving “political speech” that has long been recognized as being entitled to the highest First Amendment protection.
But the legislators could also couch their actions as exercises in religious expression. That category of speech and conduct also enjoys the highest First Amendment protection.
On that point, we should remember the Hebrew midwives Shiphrah and Puah from Exodus 1, whose reverence for God inspired them to engage in acts of civil disobedience to subvert imperial-sanctioned genocide of male Hebrew infants.
Including the religious liberty and exercise perspectives would be consistent with First Amendment jurisprudence.
If one believes it is morally wrong to be present for a legislative gathering convened for the purpose of unjust political ends – as did Shiphrah and Puah – then exercising the freedom to be a conscientious objector by deliberate refusal to be present for the gathering to prevent a quorum is an act of religious expression.
Time will tell whether (and if so, how) Judge Urrutia and the Texas Supreme Court might address this concern, and whether Amanda Tyler and her capable staff at BJC will file legal briefs about it.
That is for the lawyers and judges involved in this controversy to think through, but what about the rest of us?
Texas and other “red” states that bought into Donald Trump’s aspirations of autocracy and lies about widespread voter fraud are hellbent on legislating people of color out of the electorate and nullifying elections where those people cast votes that produce results they do not like.
Will faithful people recognize the Texas legislators as following the examples of Shiphrah and Puah?
Do not stop there!
Remember that without midwives, like Shiphrah and Puah, Moses might have been murdered at birth.
Remember Amram and Jochebed, the parents of Moses, who concealed his presence and Miriam (his sister), who devised a plan to have him raised by Pharaoh’s daughter.
Remember how Saul’s daughter (Michal) and son (Jonathan) saved David from King Saul’s assassination attempts.
Remember how the magi who paid homage to Jesus refused to return to King Herod and disclose where he lived in Bethlehem.
Remember how Joseph and Mary fled Judea, sought asylum in Egypt and remained there to protect Jesus from the plan by Herod to murder him.
Remember how followers of Jesus in Damascus helped Saul escape a plot by enemies who were determined to kill him.
These biblical narratives emphasize that devout people can express religious reverence in ways that subvert governmental mandates deemed immoral and unjust.
Why should faithful people not be informed by this perspective concerning the legislators who fled Texas to prevent a vote on laws many believe will suppress voting by people of color?
Why should we not accord these legislators protection as conscientious objectors?
All these names above offer examples of religious reverence and expression carried out to subvert tyrannical aims.
That is not something only constitutional lawyers, judges and courts should recognize.
Faithful people should say so first, without hesitation or apology, regardless of political affiliation, legal training or job title. Faithful people in every age recognized this truth.
Harriet Tubman, Sojourner Truth, Frederick Douglass, Dietrich Bonhoeffer, Martin Luther King, Jr., Oscar Romero, Cesar Chavez, Dorothy Day, Medgar Evers, Fannie Lou Hamer, Fred Shuttlesworth, Clarence Jordan, Barbara Jordan, Lyndon Baines Johnson, John Lewis, Steve Biko, Desmond Tutu and Allan Boesak have done so.
What does it mean if we cannot – or will not – do likewise?
Pastor at New Millennium Church in Little Rock, Arkansas, a state court trial judge, a trustee of the Samuel DeWitt Proctor Conference, author of one book and three blogs, and a consultant on cultural competency and inclusion.