Gay marriage: ‘A hot spur’ to Texans

Same-sex marriage opponents know they may lose when the long-awaited court ruling on a Texas case is announced any day now.

But they’re digging in to keep fighting no matter which way the ruling goes.

As dozens of other states now allow same-sex couples to wed, some conservative legislators are already weighing in with proposals to do what they can to preserve the state’s decade-old ban.

“The issue is like a hot spur to Texans,” said Brandon Rottinghaus, an associate political science professor at the University of Houston.

Working just as feverishly on the other side are lawmakers advancing proposals to repeal the ban as the state awaits a ruling from the 5th U.S. Circuit Court of Appeals that could come any day — and then the U.S. Supreme Court ruling expected this summer.

“Both sides are trying to take a political stand on this issue,” Rottinghaus said.

Alabama is the most recent hot spot in this ongoing national battle, becoming the 37th state last week to recognize same-sex marriages after the Supreme Court didn’t stop it from happening.

There has been much confusion in Alabama, after some counties have followed the direction of Chief Justice Roy Moore, who said marriage licenses shouldn’t be issued to same-sex couples. Moore, who has called homosexuality an “inherent evil,” complains about what he calls unlawful federal authority.

Some couples have filed federal lawsuits against offices that haven’t opened or issued the licenses, such as Mobile County’s marriage license division. In other parts of the state, including the major cities of Birmingham and Montgomery, workers have moved forward and are issuing the licenses.

The U.S. Supreme Court has agreed to take up the case this year, after many different court rulings nationwide on the issue.

Whenever a ruling is released on Texas same-sex marriages, Texas Attorney General Ken Paxton is expected to take the lead on what steps are next.

Texas issues

In 2005, Texas voters approved a state constitutional amendment banning same-sex civil unions and marriages.

Last year, U.S. District Judge Orlando Garcia of San Antonio struck down the ban — but he halted the decision because of pending appeals. The 5th Circuit has heard arguments challenging the ban and an opinion could come anytime.

“While public support in Texas for same-sex marriage and gay rights generally has increased over the past decade, a substantial majority of the Texans who vote in the Republican primary continue to oppose same-sex marriage along with many of the recent local level measures to prevent discrimination based on sexual orientation,” said Mark P. Jones, a political science professor at Rice University in Houston.

Now a handful of state lawmakers have filed bills on same-sex marriage and related issues. They include:

House Bill 130, which allows same-sex marriages. The measure changes the definition of “a man and a woman” who can marry to “a man and a woman, a man and a man, or a woman and a woman.” “Marriage says ‘we are a family’ in a way that no other word does,” said state Rep. Rafael Anchia, D-Dallas, one of the five co-authors.

HB 537, which says that the supplementary birth certificate for an adopted child must be in the names of both parents. No longer would the law state that adoptive parents must include one female, or mother, and one male, or father. “An adopted child needs to have a birth certificate that accurately reflects the child’s family,” said Anchia, also one of five co-authors of this bill.

HB 623, which reduces salaries of officials who issue or honor same-sex marriage licenses. State Reps. Stephanie Klick, R-Fort Worth, Jonathan Stickland, R-Bedford, and Bill Zedler, R-Arlington, are among the co-authors.

Senate Joint Resolution 10, proposing a constitutional amendment geared to prevent the government from infringing on Texans’ “freedom of religion.” “Texans should be free to run their businesses in accordance with their faith as intended by the founders of our nation, not forced (to) … act against their conscience,” state Sen. Donna Campbell, R-New Braunfels, has said.

House Joint Resolution 34, proposing a constitutional amendment to repeal the constitutional amendment that bans same-sex marriage. “We all know we will win at some point,” said state Rep. Garnet Coleman, D-Houston, who filed the bill.

And HJR 55, proposing a constitutional amendment stating that government can’t burden a person’s free exercise of religion. State Rep. Jason Villalba, R-Dallas, has said this bill isn’t directed specifically at local ordinances preventing discrimination against gay Texans. “We must stand athwart those who seek to eliminate every vestige of our religious heritage from the public square,” Villalba has said.

The Texas Supreme Court has yet to rule on a case questioning whether the state can grant divorces to gay couples who married elsewhere because of the state’s ban on gay marriage.

Last week, U.S. Sen. Ted Cruz of Texas and 11 other Republican senators reintroduced the State Marriage Defense Act, which would let states create their own definition of marriage — and prevent the federal government from enforcing any other definition.

Differing opinions

The proposals are certainly getting attention throughout the state.

“People are talking about the bills,” said David Mack Henderson, president of Fairness Fort Worth, an LGBT advocacy group. “Some of them fall under the umbrella of trying to ignore federal court rulings.

“They are trying to dance a little sidestep, saying … ‘Oh, those don’t apply to us because we created an out.’ They may think they are doing something that is going to galvanize their base, but in the long run they are making Texas look stupid.”

As for the pro-same-sex marriage measures, Henderson applauded progressive lawmakers.

“There are a handful of enlightened legislators,” he said. “I appreciate that, even in the current environment under the Capitol dome, there is still a need to continue this conversation.”

Not everyone agrees.

“Our state laws on marriage between one man and one woman remain in place and enforceable,” said Jonathan Saenz, president of the Austin-based Texas Values, which opposes same-sex marriage. “Increased efforts to redefine marriage and use of government power to restrict religious freedom are out of control and Texans want more state protection for our First Amendment rights.

“The people of Texas expect their elected officials to protect their individual rights and stop rogue government officials, like the mayor of Houston and the Bexar County clerk, who think they are above the law,” he said. “The people have a right to ask that their tax dollars not be used to fund same-sex marriage licenses; our state law is clear and enforceable on this issue.”

Same-sex licenses

Last year, when asked whether he would issue same-sex marriage licenses if a window of opportunity arose, Dallas County Clerk John Warren told The Texas Observer that he was ready to issue the licenses if they were legal in Texas.

Tarrant County district clerk officials said they wouldn’t start issuing the licenses until the law clearly stated they were legal and they were given the go-ahead by the Tarrant County district attorney’s office.

And nothing has changed since.

“There has been no law change in the state, no movement,” said Jeff Nicholson, chief deputy for Tarrant County District Clerk Mary Louise Garcia. “We are still waiting for something to happen at the state level and we are waiting for something to happen in the courts.”

Henderson said local residents will be able to get same-sex marriage licenses if it becomes legal.

“If Tarrant County Clerk Mary Louise Garcia won’t issue the marriage license here, people can go over to Dallas and get one and come back here and tie the knot.”

This story was originally published February 14, 2015 at 4:27 PM with the headline "Gay marriage: ‘A hot spur’ to Texans."