Despite recent victories in 4 states, experts says it could be 10 years before Texas legalizes — or is forced to recognize — same-sex marriage
Proponents of marriage equality in Texas may have a long time to wait.
Experts say it could take a decade or longer before same-sex marriage becomes legal in the Lone Star State.
Recent momentum from voters in Maine, Maryland and Washington approving marriage equality — and Minnesota voters defeating a proposed amendment to ban it — has led many to hope that other states will soon follow suit.
Ken Upton, a senior staff attorney in the Dallas office of Lambda Legal, the national LGBT civil rights group, said Oregon is hopeful to pass marriage equality in 2014. But he said it’s harder to raise money and draw voters to the polls in years when a presidential race isn’t on the ballot. Upton said
New Jersey, Rhode Island and Hawaii are also in line to add marriage equality, while others like Colorado are positioned to add civil unions by as early as next year.
Meanwhile, the U.S. Supreme Court will decide whether to hear a lawsuit challenging Proposition 8 — California’s amendment banning same-sex marriage — and several cases challenging the Defense of Marriage Act at the court’s conference Nov. 30.
Upton said many people think the court will hear the Prop 8 case. But if not, the U.S. 9th Circuit Court of Appeals’ decision declaring Prop 8 unconstitutional will be upheld. However, that decision applies only to California.
If the court hears a DOMA case, Upton said marriage equality advocates expect Section 3 of the law, which prohibits the federal government from recognizing same-sex marriages, to be struck down.
Section 2 of DOMA, which allows states to ignore same-sex marriages from other states, isn’t being challenged in the pending cases, although a bill has been introduced in Congress to repeal the entire law.
A decision striking down Section 3 of DOMA would force the federal government — but not states — to recognize marriage for benefits like taxes and social security.
“I think that the overwhelming expectation is that they will probably strike down DOMA, although you never know,” Upton said. “They might not. No court has upheld it yet, so there does seem to be kind of a momentum behind getting rid of it.”
If DOMA is struck down, questions will be raised about states that don’t recognize same-sex marriages and if it matters where a couple lives to receive federal benefits, Upton said. Those questions won’t be answered until after the decision has been handed down.
One thing is clear, though: Contrary to popular belief, a favorable DOMA ruling wouldn’t require states like Texas to recognize same-sex marriage.
“I’m not sure this is going to completely answer all the questions if the court takes it up, but it’s going to move us a lot further down the road,” Upton said. “In terms of marriage, it won’t have any affect on that. The Supreme Court’s decision in DOMA cases is not going to tell states they do or don’t have to marry someone. It’s just going to tell the federal government if you’re legally married, you have to recognize it.”
Texas and the other states with marriage amendments have two potential paths to marriage equality — repeal the bans before passing marriage equality legislatively or at the ballot box, or await a future Supreme Court ruling forcing them to recognize same-sex marriages.
Most advocates believe the court will force Texas along with other holdout states to recognize same-sex marriage in about a decade as more and more states legalize the practice.
Equality Texas Executive Director Chuck Smith said the likely outcome would be a majority of states approving same-sex marriage, leading Congress or the Supreme Court “to make a decision on a national level.”
“I don’t think it’ll be all that long,” Smith said. “I think it’s certainly probable within a five- to 10-year timeframe.”
Smith said Texas’ marriage amendment could be repealed, but it would take educating voters, as well as electing more politicians who support marriage equality. Repealing the amendment would require a two-thirds majority vote of both the state House and state Senate to place it on the ballot, then approval from a simple majority of voters.
“It is possible if there is intense, on-the-ground work convincing Texas that public opinion is on our side,” Smith said. “So it would be a significant amount of electoral change in order to legislatively change marriage in Texas. That’s not impossible, but it just takes work.”
State Rep. Garnet Coleman, D-Houston, has filed a bill the last several legislative sessions to repeal the amendment. He said he had to start filing the bill so “people would have something to rally around and continue to push for change.”
“It’s strategic, but makes sense,” Coleman said, adding that marriage equality will eventually come to Texas. “We know it’s going to happen.”
Coleman said having a bill pushing for repeal is an alternative plan instead of waiting on the high court. While he hasn’t been able to get the bill out of committee, he said the important thing is that the process has been started and will only gain support with changing demographics in Texas and new lawmakers in Austin.
Upton said he doesn’t think “there will be a legislative solution soon” with a conservative Legislature and uncooperative governor.
“There is some momentum in the cities that tell us that Texas may be able to get rid of all or part of the constitutional amendment sometime in the future, so I wouldn’t rule it out,” he said. “I don’t think we’re there for quite a while.”
With public opinion changing, Upton said Texas could add civil unions, like other states that aren’t yet ready for full marriage equality have done, after repealing or changing part of its amendment, which prohibits the state from recognizing anything “similar” to marriage.
“It’s certainly possible that you could see the demographics change in Texas and that’s over the next four to eight years where you might be able to get rid of the constitutional amendment,” Upton said. “At least that would open up the playing field for a Legislature in the future to do something, even if maybe it’s only civil unions or some limited domestic partnerships, which would give some benefits.”
Pioneering Dallas lesbian activist Louise Young married her partner of 41 years in California in 2008 — before Prop 8 passed. She said she was pleased with the recent marriage wins that marked a “very important turning point in the movement,” but added that she thinks the Supreme Court will ultimately decide whether Texas should have marriage equality.
“If left up to the voters, I don’t think that marriage equality would ever come to Texas. Ever,” Young said. “I can’t even perceive the time when it possibly could, if ever.”
Michael Diviesti, GetEQUAL Texas state co-coordinator, is slightly more optimistic. He said marriage equality could come to Texas in five years if Section 3 of DOMA is struck down. He said once married same-sex Texas couples have federal rights, it will be a short time before they challenge state law for more rights.
“I think removing DOMA at the federal level could catapult and fill the courts with LGBT Texans fighting to get rights,” he said. “We’re going to keep pushing our government just in case.”
Upton said the recent marriage victories help Texas indirectly because they demonstrate how equality boosts revenue and business, with a combined $166 million in revenue expected from marriages in Maine, Maryland and Washington.
“The fact that we’re seeing good results is helpful just because it kind of creates national momentum,” he said. “It only helps Texas right now indirectly. It creates more pressure to compete.”
Upton said over time people may leave Texas to move where their relationships are valued and legally binding. At least until the Supreme Court makes all states recognize them just as it did with interracial marriage and sodomy laws.
“It is going to happen. It may be that Texas is one of the last holdouts along with Mississippi and Alabama and it’ll only happen because the Supreme Court finally addresses it,” Upton said. “Eventually enough states will have protections for gay people that the Supreme Court will say there’s no good reason for treating them differently so we’re going to strike down the rest of them.”
This article appeared in the Dallas Voice print edition November 16, 2012.