A Texas Republican lawmaker has written a letter to Texas Attorney General Ken Paxton asking him to issue an opinion affirming that Texans don’t have to acknowledge legal same-sex marriages as valid, despite a 2015 U.S. Supreme Court decision finding that all state bans prohibiting the practice were unconstitutional.
In the letter to Paxton, dated October 19, State Rep. James White (R-Hillister) asked for clarification on the extent to which the Supreme Court’s decision could be enforced, noting that neither Texas lawmakers nor Texas voters have repealed the state’s statutory ban or constitutional bans on same-sex marriage, which also prohibit civil unions.
“The Constitution and laws of Texas continue to define marriage as the union of one man and one woman. The State of Texas has not amended or repealed its marriage laws in response to Obergefell v. Hodges,” White wrote, referring to the Supreme Court decision. “And the Supreme Court has no power to amend formally or revoke a state statute or constitutional provision — even after opining that the state law violates the Supreme Court’s interpretation of the Constitution.”
White argued, based on previous Texas case law, that when a court declares a law unconstitutional, the law remains in place unless the body that enacted it repeals it, and that the Supreme Court’s finding that the ban on same-sex marriage was unconstitutional did not mean the law was struck down.
“The fact that a federal district court has enjoined state officials from enforcing the Texas marriage laws in no way affects the existence or validity of those laws with regard to private parties, who are not even bound by the Fourteenth Amendment — let alone the Supreme Court’s purported interpretations of it,” White contended, referring to the decision in DeLeon v. Perry, a case brought by Texans challenging the state’s ban on recognizing same-sex marriage.
“I respectfully ask that you clarify that neither Obergefell nor De Leon requires private citizens to recognize homosexual marriages, and neither decision requires or allows them to disregard the extant laws of Texas that continue to define marriage as the union between one man and one woman,” White concluded.
If Paxton issues an opinion that backs up White’s interpretation of the law, it would not invalidate same-sex marriages per se, but would allow individual citizens — even those acting in a capacity on behalf of the state, such as a county clerk or circuit judge — to refuse to recognize an LGBTQ couple as legally married.
This could have implications for obtaining a marriage license, inheritance issues, establishing property rights, or qualifying for certain tax credits or benefits, not to mention numerous other ways in which state and national laws incentivize marriage.
Dallas Morning News reporter Lauren McGaughy noted in a Twitter thread that Texas lawmakers also never repealed the anti-sodomy statute at the heart of the 2003 Lawrence v. Texas case, in which the U.S. Supreme Court found that the state’s law prohibiting same-sex consensual relationships or activity was unconstitutional. She pointed out that, as recently as 2015, local police in Baton Rouge, Louisiana, were still arresting and charging men under the state’s “crimes against nature” law that was also declared unconstitutional in the Lawrence case.
Leaving these laws on the books, even if unenforceable under the law, can hurt the LGBTQ community.
— Lauren Mc-Ghoul-hy 👻 (@lmcgaughy) October 22, 2021
So, if one were to apply White’s logic on Obergefell to the Lawrence case, it is possible that — if Paxton issues the opinion that White is seeking — local police departments in Texas could be flooded with calls from social conservatives demanding that officers arrest or imprison couples — neighbors, acquaintances, or even strangers — whom they believe are engaging in same-sex conduct. (It should be noted that the anti-sodomy statute also outlawed certain consensual sex acts between heterosexual couples, although, in practice, the law was primarily used to target LGBTQ people.)
That would then raise the question of what could happen if individual police officers feel empowered to barge into people’s houses and arrest them on charges under the sodomy law, and whether they would be imprisoned for violating the law.
In a comment to McGaughy, State Rep. Jessica González (D-Dallas), the vice chair of the Texas Legislative LGBTQ Caucus, blasted White’s letter to Paxton, saying it continues the pattern of Texas Republicans harping on culture war issues as a way of “virtue-signaling” to the party’s base — something that could also be relevant because White is running for statewide office next year, seeking to become the state’s agriculture commissioner.
“Despite this years’ red meat agenda in the [Texas Legislature], Republican lawmakers want to continue waging their cultural war against the LGBTQ+ community rather than passing laws that create a safe and accepting state for ALL Texans,” Gonzalez said, a reference to a bill recently signed into law by Gov. Greg Abbott (R) that bars transgender youth from participating in sports that align with their gender identity.
“This is a clear reminder we must always be vigilant & ready to defend our rights,” she added.
State Rep. Julie Johnson (D-Farmers Branch), who is married to a woman, responded on Twitter, writing: “Now, [the Texas Legislature Republican colleagues don’t think the love my wife and I have is good enough to make a lifetime commitment to each other. Enough is enough! Cut the BS theatrics. You are embarrassing Texas.”
Now, my #TXlege Republican colleagues don't think the love my wife and I have is good enough to make a lifetime commitment to each other.
— Julie Johnson (@juliejohnsonTX) October 22, 2021
These are challenging times for news organizations. And yet it’s crucial we stay active and provide vital resources and information to both our local readers and the world. So won’t you please take a moment and consider supporting Metro Weekly with a membership? For as little as $5 a month, you can help ensure Metro Weekly magazine and MetroWeekly.com remain free, viable resources as we provide the best, most diverse, culturally-resonant LGBTQ coverage in both the D.C. region and around the world. Memberships come with exclusive perks and discounts, your own personal digital delivery of each week’s magazine (and an archive), access to our Member's Lounge when it launches this fall, and exclusive members-only items like Metro Weekly Membership Mugs and Tote Bags! Check out all our membership levels here and please join us today!