AUSTIN, Texas — One couple wants to get married, while the other just wants theirs recognized. A third couple wants a divorce, while the fourth wants theirs finalized. If all win their lawsuits, they could overturn the Texas ban on same-sex marriage.
A federal court in San Antonio will hear arguments next month from the attorneys representing the couples who want to live lawfully wedded. The Texas Supreme Court is considering the cases of the couples who want their out-of-state marriages legally dissolved.
They are challenging a constitutional ban on gay and lesbian marriages approved by 1.7 million Texas voters in 2005. At the time, only Massachusetts allowed gay marriage and conservatives hoped to pass a federal constitutional amendment defining marriage as between one man and one woman.
Eight years later, 16 states and the District of Columbia have legalized same-sex marriages, and New Mexico is allowing marriages pending a decision by that state’s Supreme Court later this year. The U.S. Supreme Court has also struck down the Defense of Marriage Act, saying federal authorities cannot deny the rights of couples legally married under state law.
That led to the first encroachment on Texas law, when the Texas National Guard agreed last week to begin processing applications for military benefits filed by same-sex couples. Initially, the guard told service members to apply for benefits at federal facilities because Texas law banned them from recognizing same-sex marriages.
The guard’s reversal came after Defense Secretary Chuck Hagel said he would not tolerate state-employed officials refusing to treat all members of the military equally. Meanwhile, Attorney General Greg Abbott must still issue a legal opinion on whether the Texas National Guard is violating the state Constitution by following the Pentagon’s orders.
Abbott, who is the leading Republican candidate for governor, intervened to stop a court from granting a divorce to a Dallas couple in 2009 and appealed an Austin judge’s decision to grant a same-sex divorce in 2011.
The Texas Supreme Court heard arguments in a combined case on Nov. 5 and a decision is pending. Courts are considering similar cases in Mississippi and Kentucky, while the Wyoming Supreme Court ruled same-sex divorces were allowed even though the state bans such marriages.
The two Texas couples suing to overturn the state constitutional amendment have filed their case in federal court in San Antonio. They claim Texas is denying them their constitutional rights by either refusing to let them get married, or to recognize their marriage from another state.
Abbott has promised to defend the Texas law, as he would any other state law. But in a legal opinion declaring domestic partner benefits unconstitutional in April, he acknowledged that U.S. Supreme Court decisions on same-sex marriages could overturn Texas’ constitutional pro vision.
The U.S. Supreme Court has taken tiny steps in their same-sex marriage decisions, recognizing that the majority of states still outlaw the practice, 29 through constitutional amendments and four through state law. That leaves lower courts without clear guidance on how to proceed, and raising the potential for different judges reach different conclusions.
Also, if one more state legalizes same-sex marriage, it becomes almost impossible to pass a federal constitutional amendment defining marriage as between a man and a woman. At that point, the U.S. Supreme Court may feel freed to sort out whether one state can deny the legality of a marriage performed in another. Justices in the past have frowned on citizens having different civil rights in different states.
Meanwhile, gay rights advocates are mobilizing campaigns in Oregon, Ohio, Michigan, Colorado and Nevada to expand same-sex marriage. No such campaign is planned for Texas, a Republican-controlled state known for Christian conservatism.
Conservative activists in Texas are fighting same-sex marriage by declaring it a violation of state’s rights and religious freedom. All of the major Republican candidates oppose same-sex marriage.
As a result, any change will likely come from the courts, and the fight in that arena will intensify in the year to come.
This material may not be published, broadcast, rewritten, or redistributed.