In Gay Marriage Battle, the Clock Beats Cecil Bell

When the U.S. Supreme Court struck down the federal Defense of Marriage Act in 2013, ruling it unconstitutional to deny federal benefits to legally married same-sex couples, Rep. Cecil Bell Jr., R-Magnolia, found himself agreeing with Justice Anthony Kennedy's majority opinion. 

Some might find that surprising, considering that the sophomore lawmaker from southeast Texas is leading the fight against allowing gay marriage in the Texas. But while many take from Kennedy’s opinion a strong indication that the high court will rule in favor of same-sex marriage again this summer, Bell — who loves to read the wonk-beloved judicial news site SCOTUSBlog — interprets it a little differently. 

Instead of sanctioning gay marriage, Bell believes, Kennedy's ruling was primarily an affirmation of states' rights to regulate marriage. If he's correct, the court's forthcoming decision on gay marriage may not be as earthshaking as some believe, leaving it to states to decide what to allow within their borders. 

“I think Justice Kennedy was very clear — it was his basis in fact for striking down DOMA — it was the fact that marriage wasn’t a federal purview,” Bell said. “Justice Kennedy said in Windsor that it is the sovereign power of the separate states and the people to define and regulate marriage.” 

Asserting states' sovereign rights has been the main drive behind Bell's arguments this session as he has fought same-sex marriage. 

Bills he has authored this session would do everything from taking the ability to issue marriage licenses away from county clerks to stripping salaries from local or state employees who issue same-sex marriage licenses.

Bell's strongest bid fell short Thursday night when House Bill 4105, a bill that would have forbidden state or local governments from using public funds to issue same-sex marriage licenses, failed to pass the House before midnight — the deadline for House bills. 

Enough Republicans had signed on as co-sponsors to guarantee the bill's passage had it reached the floor, and Democrats spent Thursday prolonging debate in an attempt to run down the clock and prevent Bell's legislation from being heard — a practice called "chubbing." They were ultimately successful. 

While the bill is now dead, Bell is not out of moves. He could still attempt to attach an amendment to a related Senate bill. 

"From my perspective, no bill is dead as long as there are are other bills in front. You just have to find something that's germane," Bell said after passage of the House deadline spawned hope among opponents that the measure is done with for this session. “The session still moves on.”

Throughout the session, gay rights groups and legal scholars have criticized Bell's bills as unconstitutional and outlandish. 

“This end-run play to subvert a Supreme Court ruling on same-sex marriage, to which the state of Texas would be constitutionally bound, makes Texas a laughingstock and flies in the face of Texas values,” said Terri Burke, executive director of American Civil Liberties Union of Texas.

Chuck Smith, director of gay rights group Equality Texas, said the group has worked with other lawmakers in attempts to soften the legislation, but views lobbying Bell as a lost cause.

“We have not proactively tried to change Rep. Bell’s mind — I think he has been quite clear on where he’s coming from,” Smith said. 

In an interview Thursday morning before the House convened, Bell said he believed his legislation was not a partisan issue — but he acknowledged the criticism aimed at it.

“When it first came out in the news, I think people wanted to see this bill as targeting a subset of our population — and I think that’s where a lot of the animosity towards the bill comes from,” Bell said. 

Before joining the House, Bell served as school board president in Magnolia, a town of about 1,500 in southeast Montgomery County. He tells people he is a sixth-generation Texan, and that his family roots in America date back to 1751. Bell is proud of his Texas roots — he is known around the Capitol for his ever-present cowboy hats. 

“Hats have a reason, they’re not just there for decoration,” Bell said. “I didn’t start wearing a hat when I decided to run for political office — if you go back and look at the earliest pictures of me, I wore one not because someone put it on my head but because I wanted it.”

Bell’s mother served as a councilwoman and mayor of Oakwood, where Bell graduated as high school valedictorian. He has been self-employed since 1983 at a water and wastewater treatment facilities construction company. Today, he is the CEO of several other companies. 

During his first session, Bell focused on legislation relating to dual credit classes in high school, reducing requirements for concealed handgun licenses and providing liability protection to volunteers who assist during disasters. In his second session, legislation related to gay marriage makes up a sizable portion of his legislative portfolio — though he has filed bills on local issues. 

Bell said the issue is important to him not just because of religious reasons, but to assert the sovereign rights of Texas.

“My own beliefs are my own beliefs, and I am certainly willing to assert them,” Bell said. “But I recognize that we don’t live in a theocracy. So what we’re talking about here is the sovereign rights of the states.”

He is not moved by polls showing growing support for gay marriage. According to an October 2014 University of Texas/Texas Tribune Poll, 42 percent of Texans polled were in favor of gay marriage. Forty-seven percent were against.

“If you want a more precise indication of where people are, look at another set of polls — those are the results of our elections in Texas,” Bell said. “It is one thing to say what the polls say. It’s another thing to look at people’s conduct.”

Bell also argues that federal court rulings account for the majority of states where same-sex marriage is now legal. 

In four same-sex marriage cases pending before the U.S. Supreme Court — from Ohio, Tennessee, Michigan and Kentucky — the court is expected to address whether the states must allow same-sex marriages, and if they must recognize same-sex marriages performed in another state. 

Texas’ same-sex marriage ban was ruled unconstitutional by a federal judge in 2014, but remains in effect while the case is before the U.S. 5th Circuit Court of Appeals.

Though Bell disagrees, many expect the Supreme Court to rule in favor of same-sex marriage this summer, which will likely have ramifications for any state with a gay marriage ban. Before the House convened on Thursday, Bell would not say what he thinks would happen if both the Supreme Court ruled in favor of gay marriage and his bill became law.

“That’s for itself to play out,” Bell said. 

But when discussing his philosophy toward legislating, Bell said he believed in being proactive — not reactive.

“If we don’t deal with the big issues, we will be left with whatever emerges from those issues,” Bell said. "And I don’t believe in being constantly reactive. I believe in being proactive.”