When U.S. District Judge Orlando Garcia ruled in San Antonio last week that the Texas ban on same-sex marriage violates constitutionally protected rights, Gov. Rick Perry quickly issued a news release pointing to the issue’s key dilemma:
“Texans spoke loud and clear by overwhelmingly voting to define marriage as a union between a man and a woman in our Constitution,” Perry said in the release, referring to the more than 1.7 million voters, a 76.3 percent majority, who approved a constitutional amendment to that effect in 2005.
He went on to say that it is “not the role of the federal government to overturn the will of our citizens. The 10th Amendment guarantees Texas voters the freedom to make these decisions, and this is yet another attempt to achieve via the courts what couldn’t be achieved at the ballot box. We will continue to fight for the rights of Texans to self-determine the laws of our state.”
Attorney General Greg Abbott, who is running to replace Perry as governor, was equally adamant in announcing that his office would take the case to the 5th U.S. Circuit Court of Appeals. Garcia stayed his ruling to allow time for that appeal.
“The U.S. Supreme Court has ruled over and over again that States have the authority to define and regulate marriage,” Abbott’s news release said. “The Texas Constitution defines marriage as between one man and one woman. If the Fifth Circuit honors those precedents, then today’s decision should be overturned and the Texas Constitution will be upheld.”
If the issues regarding same-sex marriage are that well-defined and that easily decided, the state indeed should have no problem winning its appeal.
But if they were that clear, legal turmoil would not have erupted in state after state in recent years. In truth, it’s a matter that cries out for a decision from the U.S. Supreme Court — and that’s where the Texas case probably is headed.
Seventeen states and the District of Columbia have legal same-sex marriage, six of them by court decisions, eight by legislative change and three by popular vote, according to the website ProCon.org.
On Feb. 12, a federal judge ordered Kentucky to recognize gay marriages legally performed in other states.
Federal judges have declared same-sex marriage bans unconstitutional in Utah, Oklahoma, Virginia and now Texas; all have stayed their rulings pending appeals.
If it were solely a 10th Amendment (states’ rights) issue, as Perry has said, this wouldn’t be happening.
The conflict is with the 14th Amendment, which says no state may “deny to any person within its jurisdiction the equal protection of the laws.”
Texans can’t, as Perry says, “self-determine the laws of our state” if those laws deny equal protection.
In 2003, the Legislature passed the Defense of Marriage Act, prohibiting the state, any agency or political subdivision from recognizing same-sex marriages or civil unions from other jurisdictions.
But in 2005, lawmakers decided that the law was not enough, that the ban should be broadened and enshrined in the state constitution.
The constitutional amendment approved by voters defined marriage as “the union of one man and one woman” and prohibited the state or any of its political subdivisions from “creating or recognizing any legal status identical or similar to marriage.”
The state was preparing its best defense for an inevitable court battle.
There can be no doubt that the national mood on same-sex marriage is evolving. Court rulings and new laws in many states are testimony to that.
But it could be a year, maybe more, before a Supreme Court ruling addresses the issue’s conflicts between state and individual rights. Then Texas will know whether it is on the right path.