David Mack Henderson said he believes that same-sex partners will be able someday to get marriage licenses to wed legally in Tarrant County.
He thought that day might come sooner rather than later, with the possibility of a court ruling that would at least temporarily open the door. But Tarrant County officials said it won’t happen.
A federal judge in San Antonio ruled this year that Texas’ ban on same-sex marriages is unconstitutional but placed a stay on the ruling. Plaintiffs in a lawsuit challenging the ban asked him to lift the stay. If he does, the Texas attorney general’s office is expected to appeal. But there could be a window of time before the appeal.
When Henderson asked Tarrant County officials whether there might be a chance to get the licenses locally during the window, the answer was no.
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“We went to the district attorney’s office and consulted with them,” said Jeff Nicholson, chief deputy for Tarrant County Clerk Mary Louise Garcia. “They said the lift of that stay … would not enable our office to issue same-sex marriage licenses.
“We, in Tarrant County, are not in the jurisdiction of that San Antonio court,” he said. “The lift of the stay in the San Antonio court would not have any impact on us.”
Henderson said it’s disappointing.
“If there is a window in Texas, as we have seen in other states, it’s vital that LGBT couples in Tarrant County have an opportunity to work within the window here,” said Henderson, president of Fairness Fort Worth. “If they can’t work within it here, they have to drive somewhere that will honor it.”
The drive might not be long — Dallas County Clerk John Warren told The Texas Observer he is ready to issue same-sex marriage licenses if a window opens to make them legal in Texas.
“You take an oath to uphold the law and if the law changes, you’ve got to do it,” Warren told the Observer. “If the law says I can’t, then I won’t. If the law says I can, then I will.”
Other county clerks in Texas, particularly the one in San Antonio’s Bexar County, have also said they stand ready to issue licenses.
Earlier this year, U.S. District Judge Orlando Garcia of San Antonio ruled that the state’s ban is unconstitutional but halted the decision because the U.S. Supreme Court blocked same-sex couples from immediately marrying in Utah.
The 5th U.S. Circuit Court of Appeals is expected to hear arguments in a case challenging Texas’ gay marriage ban early next year.
“I think it is very clear that any decisions related to Texas marriage laws are now under the sole jurisdiction of the federal 5th Circuit Court of Appeals,” said Jonathan Saenz, president of Austin-based Texas Values, which opposes same-sex marriage. “San Antonio Judge Orlando Garcia no longer has authority to rule on these matters.
“If Judge Garcia decides to go rogue and try to force county clerks to issue homosexual marriage licenses, such a reckless move will likely be stopped by the appeals court and will likely be ignored by county clerks outside of the San Antonio area, unless specific clerks have their own personal agenda that they are trying to fulfill instead of following the law,” he said. “A county clerk that decides to follow a rogue decision by Judge Orlando Garcia could find themselves on the wrong side of the law and certainly on the wrong side of the people of Texas.”
Nicholson said Tarrant County isn’t taking a political stand on the issue: “We are simply committed to following the law. It was made clear to us by the DA’s office that they will notify us when Texas law has changed and we can issue same-sex licenses. When that happens, we will open our doors and issue same-sex marriages.”
Henderson said he believes that the courts will soon settle the issue.
“This will happen here sooner than we think,” he said. “Most observers on either side agree this is going to be settled by the Supreme Court in a year or two.”
The Tarrant County news comes as lawmakers file proposals to end the ban next year.
State Rep. Rafael Anchia, D-Dallas, filed House Bill 130 to allow same-sex marriage. Texans amended the state constitution in 2005 to stipulate that marriage is a union of one man and one woman.
“Marriage says ‘we are a family’ in a way that no other word does,” Anchia has said. “Marriage strengthens families and gives couples the tools and security they need to build a life together.”
State Rep. Garnet Coleman, D-Houston, filed House Joint Resolution 34 to repeal the ban in the state constitution.
“We have come so far on this issue in a short period of time,” he said. “Our momentum is growing, and we all know that we will win at some point, whether it’s through legislation or a Supreme Court ruling.”
And state Sen. Jose Rodriguez, D-El Paso, filed Senate Bill 148 to repeal the offense of “homosexual conduct.”
Saenz said the bills may get a lot of media attention, but he doesn’t think they will pass.
“The elections this November made it clear that Texans statewide strongly support our marriage laws by electing candidates like Greg Abbott and Dan Patrick, who support and defend our Texas marriage laws,” he said.
Henderson said he doesn’t think the measures have much chance in the Legislature next year, but they serve an important purpose.
“We have to keep the fire lit, in order to continue educating those charged with ensuring that marriage equality will be available for all citizens of the state, including LGBT families,” he said.
Anna Tinsley, 817-390-7610