LGBT Rights: What Started in Texas Could End in Texas

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Victor Holmes and Mark Phariss of Plano, Texas (left) and Cleopatra De Leon and Nicole Dimetman of Austin (right). Courtesy photos.

Victor Holmes and Mark Phariss of Plano, Texas (left) and Cleopatra De Leon and Nicole Dimetman of Austin (right). Courtesy photos.

Randy_BearIn 2003, the U.S. Supreme Court handed down a landmark decision that struck down Texas’ sodomy law and similar laws in 13 other states, legitimizing same-gender activity across the nation. Lawrence v. Texas is considered to be a foundational case for LGBT rights, cited in many other cases that would follow in its wake.

It seems only fitting that another possible landmark case involving LGBT rights would originate in Texas, this one involving same-gender marriage. A month ago, two same-gender couples, one married out of state but denied benefits from that marriage and one denied the right to marry, filed suit against the State of Texas, requesting a federal court strike down the ban on same-gender marriage imposed by the state through a constitutional amendment.

Lawrence v. Texas Leads the Way

supreme court sealLawrence v. Texas was a case many thought would never come about. For decades, LGBT Texans lived under the cloud of the Texas Penal Code 21.06, the sodomy statute. While rarely, if ever, enforced, sodomy laws criminalized a segment of society through a private sexual act, allowing states to deny other rights to that segment such as employment, child custody, and marriage. As explained by the ACLU shortly after the Supreme Court handed down its decision, the sodomy statute had even been used by Williamson County officials to deny Apple Computer a tax incentive because the company recognized domestic partners, which was they interpreted as a violation of the state’s sodomy law.

Fortunately, under heavy pressure from then Gov. Ann Richards, the county reversed its decision. Lawrence v. Texas removed the stigma of homosexual conduct by ruling that sodomy statutes were unconstitutional based on the Due Process Clause. But the decision left intact issues of equality by not directly addressing the Equal Protection Clause.

Writing for the majority, Justice Anthony Kennedy wrote, “If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons.”

The Marriage Equality Fight Begins

Shortly after the U.S. Supreme Court handed down its decision in the Lawrence case, the Massachusetts Supreme Judicial Court ruled that same-gender couples had the right to marry. That court cited Lawrence v. Texas as a justification for its ruling, including this quote from the decision: “Our obligation is to define the liberty of all, not to mandate our own moral code.”

Clearly, the sweeping decision by the Court paved the way for future judicial victories for LGBT individuals in America. The challenge would be the scope of those victories, with one of the biggest targets being the right to marry. After voters in Hawaii approved an amendment allowing same-gender marriage, only a handful of states passed amendments banning same-gender marriage. But after the Massachusetts Supreme Court opened the door for same-gender marriage in that state, the 2004 election started an avalanche of ballot initiatives banning such marriages, with almost every initiative passing in the three years following the Massachusetts ruling.

While some states, such as California, started legal maneuvers permitting same-gender marriage, it became clear a decision by the U.S. Supreme Court would be needed to settle the question nationwide. Two test cases started working their way towards the Court, one challenging a California initiative that removed the right to same-gender marriage and another testing the validity of the Defense of Marriage Act. Each case offered some form of relief for same-gender couples, but the reliefs were restrictive and did not truly answer the question on a national level.

With regard to Hollingsworth v. Perry, the California case challenging Proposition 8, the Court declined to rule, stating the backers of the proposition lacked appellant standing. In United States v. Windsor, the case challenging the Defense of Marriage Act (DOMA), the Court ruled DOMA was, in fact, unconstitutional in violation of the Fifth Amendment, but the scope of the ruling only applied to federal benefits for couples legally married in states recognizing same-gender marriage.

Marriage equality supporters wave LGBT rainbow flags at Main Plaza in celebration of the Supreme Court's decision that found Prop 8/DOMA unconstitutional. Photo by Iris Dimmick.

Marriage equality supporters wave LGBT rainbow flags at Main Plaza in celebration of the Supreme Court’s decision that found Prop 8/DOMA unconstitutional in June 2013. Photo by Iris Dimmick.

Taking the Fight to Texas and Other States

After the decisions were handed down in June, a number of lawsuits were filed in federal court challenging same-gender marriage bans, the latest being DeLeon v. Perry.

Filed on Oct. 28th in federal district court by Akin Gump Strauss Hauser and Feld LLP, the plaintiffs are Cleopatra De Leon and Nicole Dimetman of Austin, and Victor Holmes and Mark Phariss of Plano. According to an article in the Dallas Voice, attorney Barry Chasnoff of the firm will be handling the case pro bono.

Victor Holmes and Mark Phariss of Plano, Texas (left) and Cleopatra De Leon and Nicole Dimetman of Austin (right). Courtesy photos.

Victor Holmes and Mark Phariss of Plano, Texas (left) and Cleopatra De Leon and Nicole Dimetman of Austin (right). Courtesy photos.

Akin Gump has a track record of supporting LGBT issues. The firm has received a perfect 100 score on the Human Rights Campaign’s Corporate Equality Index six years in a row. Last year, two of the firm’s attorneys wrote about some of the nuances of DOMA with regards to same-gender divorce in states that do not recognize their marriage. The firm also provided an amicus brief in the Windsor case.

“Like most couples, we wanted to get married, but unlike straight couples we couldn’t, at least in Texas,” said Mark Phariss, when asked about the case. “We considered going out-of-state to get married, but it would have no legal effect in Texas and could create uncertain legal issues.”

Last Friday, Akin Gump filed a preliminary injunction with the court, requesting Texas recognize the marriage of DeLeon and Dietmann and permit the marriage of Phariss and Holmes. While the motion’s intent was to provide temporary relief, the motion itself is worth reading, providing insight into the extensive research Akin Gump has completed for this case.

As of this point, nothing has been scheduled for this case and it will be interesting to see what action U.S. District Judge Orlando Garcia takes with regards to the preliminary injunction. In this case, the Texas Attorney General’s office has already asked for an extension of time. Looking at the other federal cases involving same-gender marriage, no action is expected until next year. But if the filings by Akin Gump are any indication, Texas could be where this fight may end.

From the motion: “If morality is to be our guide, as Defendants may argue, let it be that fine quality of morality enshrined in the Constitution, which requires that we treat all citizens with equal dignity and respect under the law.”


Randy Bear is a 20-plus years  San Antonio resident, transplanted from Little Rock to join the ranks of USAA in Information Technology. Over the last two decades, he’s been involved in a variety of civic and political activities, including work with San Antonio Sports, KLRN, Keep San Antonio Beautiful, and Fiesta San Antonio. Randy’s political life took root when several friends from Arkansas pulled him into the first Clinton presidential campaign. Since then, he’s been active in politics and government, including a brief period serving on the staff of former City Councilman Reed Williams. 


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3 thoughts on “LGBT Rights: What Started in Texas Could End in Texas

  1. How can an article like this not mention the “OTHER” Texas marriage case? What about the Araguz case, it also has far reaching implications for marriage.

    • Thanks for your comment Lauryn. The intent of the column wasn’t to canvass all the marriage cases of Texas, but to show how this new case has developed. As you can see, the majority of the column was devoted to the path to this point. From what I understand of the Araguz case, it’s still working its way through the state courts at a slow pace and is addressing other issues not directly related to the ban on same-gender marriage.

      Next year will most likely define more of the legal paths all the cases will take.

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