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Supreme Court vs. Texas

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By Matt Baume

Texas is setting itself up for a showdown with the Supreme Court. A bill to defy the court’s rulings died in the House last week, but anti-gay politicians could find a sneaky way to revive it. Meanwhile, the Attorney General of Texas refuses to say if he’ll obey the Supreme Court’s ruling in June.

Legislators in Texas nearly passed a bill that would have forced the state to defy the Supreme Court last week. But the deadline passed before they could hold a vote, which means the bill’s off the table, for now. If it had passed, it would have withheld funding from government offices that obeyed a pro-equality ruling from the Supreme Court.

That could never have withstood a lawsuit. States simply don’t get to decide which Supreme Court rulings they want to follow. What’s scary is that it an obviously unconstitutional bill even made it this far — and may still come back. Bill sponsor Cecil Bell says that he might find a way to attach it to some other bill that’s still alive. So we’re not out of the woods yet.

And there’s another dangerous bill that DID pass, but it’s getting less attention. That’s SB2065, which contains a hidden trojan horse for discrimination. Supporters claim that the bill lets members of the clergy refuse to conduct marriages that violate their conscience. But if that were true, there would be no need for the bill. Religious officials already have the freedom to refuse certain marriages. What the bill actually does is extend that exemption to public officials who have religious affiliations.

So for example, if a city was the hire a minister as justice of the peace, even though he’s serving in a government role, he’d be allowed to let his religious rules override the rules of his job. Couples could be turned away from government offices with no recourse. The bill passed the Senate last week, and missed its chance for a vote in the House, but like the other bill could always come back as an amendment.

There are nearly two dozen anti-gay bills working their way through the Texas legislature right now. Many, like Cecil Bell’s attempt to defy the Supreme Court, are clearly illegal. But Texas Attorney General Ken Paxton says he’ll defend them anyway. What’s more, Paxton refused to say whether he would obey Supreme Court orders to allow marriage equality in the state. That could be setting up a showdown between the Supreme Court’s orders and the State of Texas’s refusal, and it’s hard to say who would win. Just kidding, the Supreme Court would win. Eventually. But the last time there was a showdown like this, it took some unpleasant work to sort it out.

19 Comments

  • 1. dorothyrothchild  |  May 18, 2015 at 12:53 pm

    Curious as to your opinions – would Texas be considered the most homophobic state in the country?

  • 2. Rick55845  |  May 18, 2015 at 1:19 pm

    I don't know how one would measure the degree of homophobia in the public or in the legislature (not sure which you were referring to). You'd have to define homophobia, and provide some criteria for measuring it.

    In public opinion polls about same-sex marriage, there continue to be a greater percentage of people who oppose it than support it in Texas, but the gap has been diminishing over the past few years, and it is now within or very close to the poll's margin of error. I don't know how well that correlates to homophobia.

  • 3. David_Midvale_UT  |  May 18, 2015 at 5:10 pm

    Homophobia is difficult to define. On the other hand, the behavior of these Texans clearly matches the college-level psychology text-book definition of bigotry.

    Considering that many of these individuals claim to be Christians, another important issue is their deliberate disobedience to the principle that their holy book says that Jesus called the Second Greatest Commandment, i.e., the Golden Rule. How many Texas Christians would allow their family members, their friends, or themselves to be demeaned and vilified by some faction just because that politically powerful group deemed these individuals to be "icky"?

    If you reword your question to ask if Texas is the most hypocritical state, the answer would be, "No, that (dis)honor belongs to Utah." Utah Mormons exported their hypocrisy to Hawaii (c.f., the political front group Hawaii's Future Today), California (Propositions 22 and 8), etc.

  • 4. VIRick  |  May 18, 2015 at 6:27 pm

    Dorothy, following up on what David correctly stated, Texas is badly divided. The latest polls there show that an overwhelming majority of Hispanics, and an almost equally large majority of RCs, support marriage equality, as does a slim majority of all Texans of whatever ethnicity or religious/non-religious stripe. In addition, San Antonio, Austin, and Dallas are all rather liberal.

    The states where majorities still oppose marriage equality include Oklahoma, Arkansas, Louisiana, Mississippi, and Alabama.

    Texas may have more blowhards in elected positions than the others, in large part because they already know that their days are numbered, and are thus re-enacting their own version of the "defense of the Alamo." When Texas flips blue, it will become very blue, a point which is a foregone demographic conclusion.

  • 5. Fortguy  |  May 18, 2015 at 9:23 pm

    All of the state's Big Six cities are liberal, and all now have non-discrimination ordinances with Fort Worth's being the first and Houston's HERO being the most recent. The suburbs, on the other hand, are the crucibles of crazy. Long, crawling commutes stuck listening to right-wing talk radio convinces McMansion dwellers of their white victimhood in an America they must somehow take back, apparently.

    Elsewhere, our primary opponents are white evangelicals. Most other people really are indifferent to gay issues and take a live-and-let-live approach. Evangelical churches in Hispanic communities, by contrast, are much more concerned about social justice issues such as immigration and health care keeping GOP rhetoric from resonating with them.

  • 6. SteveThomas1  |  May 18, 2015 at 10:11 pm

    As someone who fought for gay rights in Austin, TX from about 1977 until I moved away in 1984, the assertion that Forth Worth's non-discrimination ordinance was first is simply wrong. Austin amended its Employment and Public Discrimination ordinances to prohibit discrimination on the basis of sexual orientation during the mayoralty of Jeff Friedman (1975-77). His successor in office, Carole Keeton McClellan at the time (now Rylander) blocked an attempt to add sexual orientation to the Fair Housing ordinance. That's what first prompted my involvement.

    In 1979 an election gave a majority of the City Counsel to folks who then voted to add sexual orientation. Almost immediately, a prominent homophobe named Steven Hotze successfully petitioned to hold a referendum on his proposed repeal of the inclusion of sexual orientation, a referendum which went down in a really quite gratifying defeat. Here's the NY Times article about it: http://www.nytimes.com/1982/01/18/us/austin-voter…. (Hotze is now active in Houston.)

    At the time, no other Texas municipality had such non-discrimination ordinances. I know because during much of this period I was the co-chair of two statewide gay rights organizations.

    I couldn't find legislative histories of Austin ordinances on-line. All these ordinances are generally recodified periodically, and there have clearly been some amendments subsequent to what we effected way back then: the Austin ordinances prohibit discrimination both on the basis of sexual orientation and of gender identity, and the latter was not in most folks thinking at the time. (Of course, way back then the notion that we might achieve marriage equality was not even imaginable.)

  • 7. DeadHead  |  May 19, 2015 at 4:41 am

    Hotze was active in Anita Bryant's "Save Our Children Coalition" movement. which had a few chapters around the country one being in Austin. A little over a decade later, 1994, a similar group forced a repeal of Austin's domestic partners program by public ballot, Proposition 22. One of the things I remember the most about both coalitions was the fear mongering they did using children as the bait in their twisted crap.

    "In 1994, Austin, Texas was faced with its own version of the anti-LGBT legislation popular at the time, which generally denied health and other benefits to the domestic partners of public employees, or explicitly removed protections against discrimination for those identifying as LGBT. In Austin's case, Proposition 22, an amendment to the city charter, targeted health benefits — although all those in domestic partnerships were ultimately affected when the amendment passed." More in this archived video from 1994 https://youtu.be/0fz2ooyzN18

    I owned a home on Bouldin Ave just a couple blocks from Barton Springs Road. I sold my home and moved from Austin to Georgia in 2007.

  • 8. Fortguy  |  May 19, 2015 at 9:50 am

    Now I'll nitpick Matt's posting and provide a legislative update of my own.

    What’s scary is that it an obviously unconstitutional bill even made it this far — and may still come back.

    What's surprising is that the bill failed when two-thirds of the Lege recite "marriage is between and man and a woman" like the Nicene Creed. This speaks volumes about the priorities of the House this session. Historically the House is where the most puerile behavior is manifested while the Senate acts as the elder, more reserved statesmen. This year it's the Senate under Lt. Gov. Patrick's team that has the temper tantrums in the cereal aisle while Speaker Straus' House has put on their big boy pants and sat at the grown-up table.

    The bill passed the Senate last week, and missed its chance for a vote in the House, but like the other bill could always come back as an amendment.

    Rumors of the death of SB 2065 are premature. Since the House either passed or killed all of its bills except for the least controversial local bills, it now dedicates the next week to addressing Senate bills including SB 2065 the status of which I'll put in my summary below.

    There are nearly two dozen anti-gay bills working their way through the Texas legislature right now.

    Absolutely not! I realize that Matt's job as an AFER activist necessarily uses some level of FUD-mongering to mobilize our supporters. The 21 or so bills may have been a somewhat accurate number at the time of the filing deadline weeks ago, but a lot of things have changed since then. For one thing, some bills including HB 4105 were filed with a different numeration then withdrawn and reintroduced after slight changes. Most important of all, every piece of anti-LGBT legislation originating in the House died last week. Simply stated, because there are fewer Senators (31) than Representatives (150), the Senate has been much less prolific than their House counterparts in filing hate bills. As a result, the overwhelming majority of proposed anti-LGBT legislation is now dead.

  • 9. Fortguy  |  May 19, 2015 at 9:53 am

    So with only Senate bills still showing any life at all and with the legislative calendar growing tighter, these are the remnants of hate we still have to fight:

    SB 343 – Relating to the conformity of local law with state law.
    Status: Referred to State Affairs Committee (Feb 2)
    This bill would prohibit local governments from adopting ordinances more stringent than similar regulations in state law. This bill would not only prohibit cities from passing LGBT protections but also a wide range of other matters such as plastic grocery bags.

    SB 673 – Relating to the funding and issuing of marriage licenses and certifications and the recognition of certain marriages.
    Status: Referred to State Affairs Committee (Feb 24)
    This bill would transfer authority to issue marriage licenses to the office of the Secretary of State. County clerks generally would still accept license applications and hand out certificates, but would do so only under the authority of the SOS. A county clerk could not be compelled by a court to issue a marriage license because they would no longer have the authority to do so. A rogue county clerk who issues licenses on their own could have their own directive to accept applications and dispense licenses revoked.

    SB 1155 – Relating to prohibition of certain regulations by a county, municipality, or other political subdivision.
    Status: Referred to State Affairs Committee (Mar 17)
    Local authorities would not be able to create a protected classification nor prohibit discrimination on a basis not contained in state law. This bill is similar to SB 343 except it allows cities more ordinance authority as long as they don't express more tolerance and protection to actual people.

    SB 2065 – Relating to the rights of certain religious organizations and individuals relating to a marriage that violates a sincerely held religious belief.
    Status: PASSED Senate 21-9 (May 12); House State Affairs Committee reports favorably without amendments 8-1, 4 absent (May 15); reported to House Calendars Committee May 18
    This is the bill Matt incorrectly believes is dead. Although Matt's summation is largely correct (cities in Texas don't have justices of the peace, a county precinct office, although cities have municipal judges), the bill could potentially go further to allow faith-based discrimination in other institutions such as religiously affiliated hospitals or adoption agencies. This presently is the only Senate bill so far to emerge from committee and be under consideration by the House.

    SJR 10 – Proposing a constitutional amendment relating to an individual's or religious organization's freedom of religion.
    Status: Referred to State Affairs Committee (Feb 2)
    This is the worst of the worst, an Indiana-style license to discriminate constitutional amendment to allow every butcher, baker, and candlestick maker to kick you out the door and refuse to serve you based on "sincerely held religious belief". Should the joint resolution prevail in both houses, it would be placed on the Nov 3, 2015 ballot for voter approval where it would bear the measly description "The constitutional amendment relating to an individual's or religious organization's freedom of religion." Proposed constitutional amendments bypass the governor's desk without his signature nor veto, but do require two-thirds passage in both chambers. If it passes, it will be on the ballot in a very low odd-year election with no federal, state, or county political offices contested. Turnout in these elections tend to be older, white conservatives such as the 2005 election passing Prop. 2 banning same-sex marriage in the Constitution.

  • 10. Fortguy  |  May 19, 2015 at 9:54 am

    So where do we stand going forward? The Senate's bill deadlines are meaningless as the House's are more constraining. So these are our landmarks:

    Thursday the 21st Last day for Senate to pass bills and send them to the House. Only SB 2065 has met this deadline. That no other hate legislation has left committee yet is promising.

    Saturday the 23rd Last day for House committees to report SBs and SJRs.

    Tuesday the 26th Last day for House to consider SBs and SJRs on second reading. This day will be a rehash of last Thursday's fight with HB 4105 with a long number of bills on calendar every one of which subject to debate and amendment. Unlike last week, we don't know which bills will make it that far or how far down they'll be in the pecking order. A third reading the following day is generally seen as a procedural matter. After that, conference committees will reconcile differing versions of bills and send them back to the two chambers for final approval to end the session.

    There are several pro-LGBT Senate bills still alive. They're not like to pass, but a tired ol' queen can always dream.

  • 11. Fortguy  |  May 19, 2015 at 10:18 am

    I happily stand corrected. I based my claim on this Texas Tribune article..It's interesting that the article quotes former FW mayor Kenneth Barr as saying that the ordinance passed with little fanfare in which he doesn't remember any details about the debate compared to the acrimony that San Antonio, Houston, and Plano have seen recently.

  • 12. SteveThomas1  |  May 19, 2015 at 10:43 am

    Yes, the article is very odd. It could be argued that in 1975-77 Austin wasn't a "major Texas city" (if I recall correctly the population around that time was about 250,000), but by the year 2000 it was undeniably a major Texas city. Perhaps the fact that Austin was so much further along in recognizing gay rights than the rest of Texas has led folks to simply forget about it.

    What, by the way, is the Texas Tribune?

  • 13. Fortguy  |  May 19, 2015 at 10:57 am

    The Texas Tribune is an online news site that reports on politics and public policy. It's been around for roughly five years or so. The editor-in chief and CEO is Texas Monthly veteran Evan Smith. The Trib does not publish editorials and tries to maintain a neutral point of view as opposed to, for instance, the progressive Texas Observer.

  • 14. Fortguy  |  May 19, 2015 at 7:39 pm

    Update: First I'll give out the good news. All of the bills listed above as sitting in the Senate State Affairs Committee are apparently going to remain stuck there. The committee will hold no hearings on these, or any other Senate bills for that matter, for the rest of the week. It seems the committee has moved on to House-passed proposed legislature. My guess is that the committee couldn't find 19 votes (out of 31) needed to pass the Senate's three-fifths rule for bringing a bill to a vote. The more noxious proposed constitutional amendment needed to clear two-thirds (21 of 31) to pass. The Senate has 20 Republicans and 11 Democrats. John Wright of the Texas Observer reports that Texas Values President Jonathan Saenz has the sadz and is blaming the Texas Association of Business for its opposition to anti-LGBT legislation. Those who follow Texas LGBT politics will remember that Saenz is the guy whose first wife left him for another woman.

    Now I'll lay out the bad news. The House Calendars Committee today gave SB 2065 a Thursday the 21st floor date. Let's hope this bill gets amended on the floor to push it into House-Senate conference and delay it further. The bill was not amended in House committee nor does the House face any crushing deadline that day.

    It is remarkable the the Lege is poised to pass at worst only one anti-LGBT bill this session despite the volumes that were filed. We still have to be on our guard that hate doesn't get pieced onto some other legislation especially in the conference committees during these last days. Let's also circle that date, May 21, and let everyone know what the Lege will be trying to pass. If Gov. Abbott and the House get enough heat, they may back down.

  • 15. FredDorner  |  May 19, 2015 at 7:50 pm

    I'm hoping that SCOTUS is paying attention to what's been going on in these red state legislatures, and opts to rule based on heightened scrutiny for sexual orientation.

  • 16. DrBriCA  |  May 19, 2015 at 9:22 pm

    Maybe once SCOTUS rules, the Texas Supreme Court can finally rule on the same-sex divorce case it's been sitting on since November 2013!

  • 17. VIRick  |  May 19, 2015 at 10:02 pm

    DrBri, if I remember correctly, there were two cases,"J.B. v. Dallas County," and "Texas v. Naylor." Both were heard together on 5 November 2013, and both were seeking to force Texas, for the purpose of divorce, to recognize a legal marriage already performed out-of-state. The Texas Supreme Court has been sitting on the decision ever since oral argument.

  • 18. Fortguy  |  May 20, 2015 at 11:34 am

    Update: Equality Texas reports that Rep. Cecil Bell, author of failed HB 4105, may try to breath new life into his onerous bill by attaching it as an amendment to SB 2065 tomorrow. Update 2: And yet Lone Star Q tweets that he will NOT try to amend the bill.

  • 19. Fortguy  |  May 21, 2015 at 1:20 am

    Today SB 2065 hits the House floor. The House convenes at 10:00 am CDT, and a livestream will be provided by the Texas Tribune: http://txlege.texastribune.org/livestream/

    The relevant Twitter hashtags to follow along are #SB2065 and #txlege.

    Also it looks like Rep. Cecil Bell won't try to double down on the hate by amending the bill because he doesn't want to endanger its passage. For more info, see the article by John Wright, Texas Observer: House to Vote on ‘Pastor Protection Act’ Backed by Anti-LGBT Groups

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