Texas officials against gay marriage cannot skirt state law
In 2003, when the U.S. Supreme Court issued the landmark ruling that bedrooms are private places and gay sex is not a crime, Justice Antonin Scalia was, not surprisingly, among those who dissented.
He attacked his colleagues, accusing them of taking sides in a “culture war” and inventing “a brand new constitutional right.” He said the majority departed from the view of mainstream Americans, who did not want openly gay people “as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home.”
He predicted the end of Texas’ sodomy law would lead to the end of laws prohibiting bigamy, prostitution, incest and bestiality.
Meanwhile, in Austin, thenGov. Rick Perry’s spokesman, Gene Acuna, offered this statement for a Houston Chronicle article: “The Supreme Court has issued its ruling in this case, and the state of Texas will abide by the decision.”
And, just like that, a statute used to demonize gays lost its fangs.
Twelve years later, when the high court took the next bold step of legalizing nationwide the right to marry for samesex couples, Scalia registered another tantrum.
This time, the governor of Texas, now Greg Abbott, let loose his own moral outrage. And so did the lieutenant governor. And so did the attorney general. There was no respect for the law. Just contempt.
Abbott accused the five justices who voted to legalize same-sex weddings of imposing “on the entire country their personal views.”
“Marriage was defined by God. No man can redefine it,” Abbott wrote in a letter to potential donors. “If you agree, I ask that you make a contribution to my campaign today.”
His words eerily recalled those of Virginia Judge Leon Bazile as he considered the case of Mildred and Richard Loving, a
young, mixed-race couple charged with cohabitation and jailed after they married in another state and returned home to a place that still enforced its “miscegenation” law.
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents,” the judge said. “The fact that he separated the races shows that he did not intend for the races to mix.”
It’s hard to believe that it was just 48 years ago this month that the Supreme Court, in another watershed moment, overturned the Lovings’ conviction and legalized interracial marriage in more than a dozen states, including Texas.
Although the decision was unanimous, it was radical for many Americans, only around 20 percent of whom approved of blacks and whites marrying, according to Gallup polling from the late 1960s. It wasn’t until the late 1990s that the majority of Americans polled supported interracial marriage. Us-versus-them terms
Americans are already there on same-sex marriage. Recent Gallup polling shows about 55 percent of Americans approve, up from 27 percent in the mid-’90s. And it was already legal in 37 states.
The court’s latest ruling that has no power over private people or private religious institutions.
It does not keep anyone from judging, or hating, or even just politely refusing to acknowledge gay people. No court ruling has ever told a pastor whose wedding he or she can bless. That hasn’t changed.
But if officials in Texas think they can skirt the state law by allowing certain government employees to abstain from enforcing it, they’re wrong, says Lawrence Sager, a constitutional law professor at the University of Texas who has written a book on religious liberty.
“The idea that some public official can walk away in a huff is not consistent with the constitutional obligation of the state,” Sager said.
Yet huffing and scoffing is the response from state leaders so far. Lt. Gov. Dan Patrick said he’d rather be on the wrong side of history than the wrong side of his faith. Attorney General Ken Paxton said “our guiding principle should be to protect people who want to live, work and raise their families in accordance with their religious faith.”
They talk about “people of faith” in us-versus-them terms, as though the faithful couldn’t possibly include gay families. And as though faiths that reject same-sex marriage are superior to those that accept it.
Paxton refers to those who support Friday’s ruling as having an “anti-traditional marriage agenda.” Not seeking to devalue
As Justice Anthony Kennedy said repeatedly in his opinion, same-sex couples weren’t seeking to devalue marriage. They sought its privileges and responsibilities, because they respected the institution.
Mitchell Katine, a Houston lawyer who helped represent the plaintiffs in the sodomy case, Law- rence v. Texas, said he was embarrassed by Texas officials’ response.
“I don’t understand the animosity. I really don’t,” he said. “I think it’s more political and more of an opportunity to pander to the ultra-conservatives.”
Nonetheless, he is celebrating the decision with his partner of 16 years and the 13-year-old children they adopted as infants. The ruling may be just as profound for the middleschoolers as for their parents.
“With this decision, we’re suddenly not such a strange, unusual family,” Katine said. “It’s a recognition that we’re as good a family as the next one down the street.”