Experts say married couples who reside here will receive some federal rights, predict high court will address legality of state amendments soon
LOVING IT | Members of the LGBT community and allies gather at the Legacy of Love Monument on Cedar Springs Wednesday to celebrate the Supreme Court’s marriage-equality rulings. (John Wright/Dallas Voice)
While LGBT advocates across the country lauded the U.S. Supreme Court’s historic rulings in two marriage equality cases this week, same-sex couples in Texas wondered how long it would be until they could receive the full benefits of marriage.
The Supreme Court struck down Section 3 of the Defense of Marriage Act as unconstitutional in United States v. Windsor, requiring the federal government to recognize married same-sex couples and provide them with the full benefits of marriage they were previously denied. However, it remained unclear how many of those benefits couples who are legally married in other states but reside in Texas will receive.
The court ruled in Hollingsworth v. Perry, the challenge to the constitutionality of California’s same-sex marriage ban Proposition 8, that supporters of the amendment didn’t have standing to appeal. That means same-sex marriage will resume in California but the ruling will not bring marriage equality to other states.
Only a sweeping decision on the merits in the Prop 8 case would have allowed Texans to marry if the court had found all state marriage amendments unconstitutional. But the rulings’ significance is not lost on Texas, as LGBT advocates say the momentum from the Supreme Court will bring marriage equality to the state — and nation — within a few years.
Equality Texas Executive Director Chuck Smith said the wave of support for marriage equality will only grow in Texas.
“I think these rulings also add to the positive momentum that already existed,” Smith said. “Having the U.S. Supreme Court say that it’s unconstitutional to treat couples differently, that there’s no rational basis to treat couples differently is a huge opinion. And while it did not extend that opinion in order to change our state constitution, it’s a really strong argument.”
With the record number of pro-LGBT bills filed in the Texas Legislature this past session, including legislation to repeal Texas’ marriage amendment in the House and for the first time in the Senate, Smith said equality is resonating with lawmakers. A two-thirds majority in both chambers is required to place the amendment on the ballot for a vote, which would be repealed if a majority of voters support overturning it.
“We just need to elevate the level of conversation and accelerate the pace at which more people come in line to support it,” he said. “And they will and they are.”
State Rep. Lon Burnam, D-Fort Worth, announced Wednesday afternoon he plans to reintroduce a marriage equality bill in the special session of the Legislature that begins Monday. However, the Legislature can’t consider the bill unless Gov. Rick Perry adds it to the agenda.
“I call on Governor Perry to add marriage equality to the special session call,” Burnam said in a statement. “Clearly granting equal rights to all Texans is more urgent than imposing restrictions on women’s health and liberty based on junk science and sham medical research.”
Ken Upton, senior staff attorney at Dallas’ Lambda Legal office, said how federal agencies follow the DOMA ruling will take time and how many benefits married LGBT Texans miss out on because they don’t live in a marriage-equality state hasn’t been determined yet.
“The effect may not be as complete as if you lived in a state where your marriage was recognized,” he said. “It’s going to be a little bit challenging for a while to figure all this out because it’s going to be on an agency-by-agency and benefit-by-benefit basis. … I would not assume that just because you live in Texas you won’t see the benefit or some change from the decision.”
Upton said some benefits are allotted to couples based on where they were married and others based on where they live. In some instances, like immigration for same-sex couples and military spousal benefits, will go into effect regardless of the state someone lives in.
President Barack Obama released a statement Wednesday, instructing agencies to review their policies and provide legally married same-sex couples with benefits quickly.
“This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve,” Obama said. “And for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better.”
The Department of Justice, Department of Defense and Department for Health and Human Services released statements this week to reiterate that they would offer benefits to all military and federal employees and their same-sex spouses over the coming days. U.S. Attorney General Eric Holder said he would oversee the agencies implementation to ensure the federal laws affected by the ruling comply.
“The Court’s ruling gives real meaning to the Constitution’s promise of equal protection to all members of our society, regardless of sexual orientation,” Holder said. “This decision impacts a broad array of federal laws. At the President’s direction, the Department of Justice will work expeditiously with other Executive Branch agencies to implement the Court’s decision.”
As agencies decide how benefits will work with same-sex couples across the nation, Upton said those rules will be under scrutiny when couples move from state to state and therefore gain and lose benefits based on residency. He said the Supreme Court will ultimately have to decide if states should recognize marriages across state lines, which is something many people expected from the Prop 8 case, but the standing issue was a problem because private individuals, not state officials, were defending the law.
“This will get back up to the Supreme Court. I’m not so sure that some of them weren’t ready to handle the Prop 8 case but the standing issue was pretty obvious,” Upton said. “I think that the right case could get back up there and I think there’s still a good chance that you might see five justices who would strike down one of these state discrimination laws.”
As for domestic partner benefits in Texas, Upton said the DOMA case had nothing to do with state recognition of marriage. But several agencies took Texas Attorney General Greg Abbott’s opinion that they violated the state constitution’s marriage amendment into consideration and waited on the court’s ruling to decide whether to offer them, such as DART, which is expected to bring the issue back up for discussion on July 9.
Upton said the cases don’t affect Texas, but the arguments the justices made in DOMA for the federal government to treat same-sex couples equally could be “persuasive reasons” for the state to also treat them equally with benefits. He added that governmental bodies like El Paso County have already reworded the benefits to get around Abbott’s opinion.
With the national momentum building in favor of marriage equality, the Human Rights Campaign is turning its focus to states that have civil unions but not marriage like New Jersey, Hawaii, Oregon, Nevada, and intervening in southern states like Texas that need help gaining a marriage win in the coming years.
“These decisions underscore the emergence of two Americas,” HRC President Chad Griffin said. “In one, LGBT citizens are nearing full equality. In the other, our community lacks even the most basic protections. Everywhere that injustice still prevails, we will fight for justice. And our message to those who cement their feet on the wrong side of history is that we will win.”
Upton said the push for nationwide marriage equality could bring another marriage case challenging state recognition to go before the court in five years or less, as several cases in other states could make it back to the high court. He expects pressure to also build in states where civil unions aren’t given the same benefits as opposite-sex marriages.
“Now that you’re going to get to experience the full effect of being married, I think that that’s going to put more pressure on the states that don’t give you anything at all, including Texas,” Upton said.
An issue that’s still waiting to be addressed in Texas is same-sex divorce. Abbott intervened when a Dallas couple filed for a divorce four years ago. The case, along with an Austin lesbian couple’s case, went to the Texas Supreme Court, but the court hasn’t decided whether to take the case in more than two years.
Jody Scheske, the attorney representing both couples, said many people thought the court was waiting on the U.S. Supreme Court rulings before deciding to take the case. But the court doesn’t have a timeline for taking cases and isn’t required to explain why there’s a delay.
“It’s a bit of mystery as to why the court hasn’t made a decision, not about the case but whether to take the case,” Scheske said. “Clearly the DOMA decision is momentous but I don’t have any way of knowing if that will help encourage the Texas Supreme Court to act or not.”
He said the Austin couple was already granted a divorce, but the Dallas couple was only granted jurisdiction for a divorce, but never actually received one. If the court doesn’t take the case, the couple can appeal or find a court with the jurisdiction to grant them a divorce. Scheske said it’s a problem that couples across the nation will face as more same-sex couples can marry in other states but can’t dissolve the marriage in their home state.
Upton said the problems for states to decide marriage will create so many hiccups that the Supreme Court will be forced to take another case one day because marriages will be valid and then invalid.
“I think that’s going to become unworkable,” Upton said. “It’s going to become unworkable for business, it’s going to become unworkable for families. I think the states are going to start getting pressure to find a solution to find some solution for that patchwork.”
This article appeared in the Dallas Voice print edition June 28, 2013.