Gay Marriage Cases Give Republicans the Jitters

With the U.S. Supreme Court set to hear oral arguments in four same-sex marriage cases Tuesday, Texas Republicans are already looking for potential loopholes should the high court decide gay marriage can't be barred under the U.S. Constitution. 

But depending on the court's eventual decision, whatever workarounds lawmakers cobble together this session might be unenforceable, along with the statewide constitutional ban on gay marriage passed by voters in 2005. 

That's not stopping some lawmakers from looking for ways to chip around the edges. Equality Texas, a lesbian, gay, bisexual and transgender rights group, has labeled five bills from this session as “anti-marriage." One, House Bill 4105, passed the State Affairs Committee last week and would forbid using state or local funds to issue same-sex marriage licenses. 

Bill author Rep. Cecil Bell Jr., R-Magnolia, said it is shortsighted to assume Texas would have to begin recognizing same-sex marriages if the Supreme Court rules in favor of gay marriage in other states. 

“If the case being heard by the court is not in your state, it doesn’t necessarily mean you will see states flock to align themselves with the ruling that comes out of the Supreme Court,” Bell said.  

A decision in a lawsuit challenging Texas’ same-sex marriage ban is currently pending before the U.S. 5th Circuit Court of Appeals. Three judges heard oral arguments in January. Some do not expect that court to rule until the Supreme Court does. 

Other legislation aimed at same-sex marriage this session includes: 

• House Bill 623, which would take away the salary of state and local government employees who issue same-sex marriage licenses.
• House Bill 1745 and Senate Bill 673, which would change state law so that only the secretary of state could issue marriage licenses, now typically issued by counties.
• House Bill 2555, which would add language to state law saying federal laws or federal rulings do not apply to Texas’ ban on same-sex marriages. 

Even if any of the measures pass, their own legality is dubious, legal experts say. If the Supreme Court finds that gay marriage is a national right, state law could not trump that decision, said Texas A&M University law professor Meg Penrose.

"This legislation that is being proffered by Texas is actually completely irrelevant on the question of the national right to marriage,” Penrose said. “Right now, Texas has the right as an independent state to decide for itself whether same-sex marriages can be entered into in Texas or recognized. But if the United States Supreme Court says the U.S. constitution answers these very questions, then because we’re a constitutional democracy, Texas will lose its right to prohibit or continue to prohibit those relationships.” 

The four cases pending before the Supreme Court are from Ohio, Tennessee, Michigan and Kentucky. The court will address whether the states must allow same-sex marriages, and if they have to recognize a same-sex marriage performed in another state. If the court rules gay couples have a national right to marry, Penrose said, it “will have a revolutionary effect on Texas as a state.”

“If in this question the United States Supreme Court disagrees with Texas, Texas does not have the legal ability to avoid that ruling,” Penrose said. “The Constitution is the supreme law of the land.” 

Bell said he filed his legislation because he thinks it is important to assert Texas’ sovereign rights.

“In 2010 there were 25 million Texans, of which 42,000 contended to be same-sex couples in Texas — so you have 42,000 folks wanting to see the state law aligned to their interest,” Bell said. "You got the rest of that population wanting to preserve the sovereign rights of states.”

According to an October 2014 University of Texas/Texas Tribune Poll, 42 percent of Texans polled were in favor of same-sex marriage. Forty-seven percent were against and 11 percent were unsure. 

Daniel Williams, a legislative specialist for Equality Texas, said the bills could delay bringing gay marriage to Texas if the Supreme Court rules in favor of it.

"Where state officials are recalcitrant in their opposition to the freedom of marrying, it can create a chaotic transition," Williams said. "That's not necessary — but if [Attorney General] Ken Paxton wants to create chaos, he certainly has the power to do so."

Disclosure: Texas A&M University is a corporate sponsor of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.