Same-sex marriage law is seen as reprieve
WASHINGTON — The likely passage of a federal law legalizing same-sex marriage is a rare win for LGBTQ Texans who feel like they have been under assault by a Republican Party that has made opposition to them a part of its official platform.
The bill, which would shore up marriage equality if the Supreme Court were to overturn the 2015 ruling establishing the right, is expected to pass the Senate in the coming weeks. It is seen as a brief reprieve before a legislative session in Austin where the GOP is pushing against LGBTQ rights in a significant way.
For married same-sex couples in Texas, the legislation would protect family health care plans, wills and more if the high court were to revisit its ruling in Obergefell v. Hodges.
Still, a recent court decision struck down LGBTQ protections against discrimination in the workplace, and advocates are bracing for another wave of legislation targeting that group.
Republican state lawmakers already have filed more than 10 bills that would primarily affect LGBTQ Texans. They include measures targeting gender-affirming care for transgender teens and ongoing efforts to limit classroom discussion of human sexuality — both of which will be priorities in the state Senate next year, Lt. Gov. Dan Patrick has
said.
“The LGBT community has had some tough losses, and we are being attacked in this really complex and layered way,” said Ricardo Martinez, CEO of Equality Texas, which advocates for LGBTQ rights. “It’s (the federal legislation) restorative for our spirits and for folks who have been struggling with a news cycle that has been incredibly brutal.”
The federal legislation is expected to have enough GOP support to pass, but it has been opposed by all but one Texas Republican, Rep. Tony Gonzales of San Antonio.
Texas Republicans argue that the Respect for Marriage Act doesn’t do enough to protect religious liberty. And they say there is no need for the legislation when same-sex marriage was already made legal by the Supreme Court.
“Zero evidence Obergefell threatened,” tweeted Sen. John Cornyn, who voted to block the bill this month. “Threat to religious liberty is, however, a real and present danger with Biden IRS.”
Sen. Ted Cruz, who also voted to block the bill, said it is “all about teeing up the Biden IRS to target religious schools, churches and charities.”
Advocates say the federal law would be especially important in states such as Texas, where laws remain on the books banning same-sex marriage and sodomy, despite Supreme Court rulings legalizing both. If the high court were to overturn the 2015 ruling on marriage, as Justice Clarence Thomas has suggested it should, the federal law would protect the thousands of Texans in same-sex unions.
The bill would not force states such as Texas to legalize same-sex marriage, but it would require them to recognize marriage licenses issued in states where it is legal. State agencies and local governments would have to recognize the marriages as well.
“There are certainly ongoing indications that some people in Texas would like to take the law back to earlier days when LGBTQ people did not have legal protections and sometimes were subject to criminal prosecution,” said Jenny Pizer, chief legal officer at Lambda Legal, a nonprofit group that advocates for their rights. “The Respect for Marriage Act is particularly important to provide some protection — some really important protections — for people living in states where we see that kind of legal activity germinating.”
The legislation follows a string of recent court rulings in Texas that chipped away at LGBTQ rights in
the workplace and access to health care.
This month, a federal district judge ruled that the Biden administration cannot stop doctors from denying certain medical care based on a patient’s sexual orientation and gender identity. And last month, the same judge ruled that LGBTQ Texans can be fired from a job because of the way they dress, or the bathroom they use, and that their employers are under no obligation to use the pronouns workers choose for themselves.
Gov. Greg Abbott this year ordered the state’s child welfare agency to open child abuse investigations if parents provide their transgender kids with gender-affirming care, such as hormone therapies and puberty blockers. LGBTQ advocates quickly condemned the decision, and they have been fighting the directive in an ongoing court battle.
The agency has opened 14 investigations into families of transgender children since February, said Patrick Crimmins, a spokesman for the Department of Family and Protective Services.
Ten of the investigations have been closed, while the other four are still open. No children have been removed from their homes, he said.
LGBTQ Texans say they feel like they were used as bait during an election season when Republicans like Patrick campaigned on blocking transgender youths from getting such care and when conservative activists targeted drag shows they said were inappropriate for children.
On the other side, Republican Attorney General Ken Paxton has argued that the use of gender-affirming medications such as puberty blockers is the equivalent of taking away a child’s constitutional right to procreate, especially when they are too young to legally consent, and may result in physical and mental harm that amounts to abuse.
The Texas GOP’S platform, adopted over the
summer, labels homosexuality “an abnormal lifestyle choice.” The party also has repeatedly denied the Log Cabin Republicans, a group for LGBTQ conservatives, a booth at its convention.
State Rep. Steve Toth, Rthe Woodlands and a member of the conservative House Freedom Caucus, has filed at least three bills related to LGBTQ issues, including a Texas version of Florida legislation that critics have dubbed the “Don’t Say Gay” law.
That law prohibits schools from teaching about sexual orientation and gender identity to students in kindergarten through third grade. Democrats and civil rights advocates have said the legislation marginalizes LGBTQ students and may chill all discussion of sexuality in the classroom.
Toth’s House Bill 631 includes language identical to the Florida measure, except that his legislation would apply to students through the fifth grade.
Patrick, the lieutenant governor, said this year that the legislation would be a top priority for him in the next session. The lieutenant governor has wide authority to set legislative agendas as president of the state Senate, which is known as the more conservative of the two chambers.
The Legislature last year passed a bill preventing transgender children from competing on sports teams aligning with their gender identity, which Abbott signed into law. The Senate also passed bills outlawing gender-affirming care and creating religious exemptions for lawyers to deny service to LGBTQ Texans, but both measures failed in the House.
Republicans already have filed several bills that again aim to ban hormone therapies and puberty blockers for transgender youths. HB436, authored by state Rep. Jared Patterson of Frisco, would classify those treatments as child abuse, putting more weight behind Abbott’s directive to the child welfare
agency.
Toth’s HB41 and HB122 also would hold doctors liable for administering such medications to minors or performing gender reassignment surgeries, which are rarely used on young people. He compared his legislation to age limits for buying alcohol or getting a tattoo.
Most major medical organizations support gender-affirming care, which is linked to reduced rates of attempted suicide, depression and drug use.
Gay Texas Republicans, meanwhile, say they believe they have made progress within the party, even if there is much work to be done, as shown by the Texas GOP’S opposition to the marriage bill.
“You want everybody to be on the same page, and you want everybody to support your right to be who you are, but it takes convincing sometimes,” said Christopher Halbohn, president of the Harris County Log Cabin Republicans. “That’s part of how we view our role here in Texas: making inroads with the Texas GOP and convincing people we’re assets.”
Halbohn said the group showed its worth during the midterms when it campaigned heavily for Republicans in Harris County. He said no candidates refused their endorsement or their help knocking on doors.
He said the fact that 12 Senate Republicans were willing to support the federal legislation is a sign of broader shifts within the party, even if Texas Republicans aren’t quite there yet.
“It’s a really striking point in time to be in as a Republican,” he said. “We definitely have some more inroads to make in the Texas GOP, but I think there’s sometimes a strategy to that: showing people that we agree on 90 percent of the issues that make us Republicans, so let’s start with where we agree more and work to influence things to get people to see our points.”