As is so often the case, the state of Texas will lag behind the rest of the country on the issue.
If DOMA is struck down, questions will be raised about states that don’t recognize same-sex marriages and if it matters where a couple lives to receive federal benefits, [Ken Upton, a senior staff attorney in the Dallas office of Lambda Legal, the national LGBT civil rights group] said. Those questions won’t be answered until after the decision has been handed down.
One thing is clear, though: Contrary to popular belief, a favorable DOMA ruling wouldn’t require states like Texas to recognize same-sex marriage.
“I’m not sure this is going to completely answer all the questions if the court takes it up, but it’s going to move us a lot further down the road,” Upton said. “In terms of marriage, it won’t have any affect on that. The Supreme Court’s decision in DOMA cases is not going to tell states they do or don’t have to marry someone. It’s just going to tell the federal government if you’re legally married, you have to recognize it.”
Texas and the other states with marriage amendments have two potential paths to marriage equality — repeal the bans before passing marriage equality legislatively or at the ballot box, or await a future Supreme Court ruling forcing them to recognize same-sex marriages.
Most advocates believe the court will force Texas along with other holdout states to recognize same-sex marriage in about a decade as more and more states legalize the practice.
Equality Texas Executive Director Chuck Smith said the likely outcome would be a majority of states approving same-sex marriage, leading Congress or the Supreme Court “to make a decision on a national level.”
“I don’t think it’ll be all that long,” Smith said. “I think it’s certainly probable within a five- to 10-year timeframe.”
Smith said Texas’ marriage amendment could be repealed, but it would take educating voters, as well as electing more politicians who support marriage equality. Repealing the amendment would require a two-thirds majority vote of both the state House and state Senate to place it on the ballot, then approval from a simple majority of voters.
“It is possible if there is intense, on-the-ground work convincing Texas that public opinion is on our side,” Smith said. “So it would be a significant amount of electoral change in order to legislatively change marriage in Texas. That’s not impossible, but it just takes work.”
I don’t think a legislative solution is likely to be viable. Don’t get me wrong, I’m happy that Rep. Garnet Coleman introduces a bill to repeal Texas’ awful Double Secret Illegal Anti-Gay Marriage constitutional amendment, but it’s precisely because this bit of bigotry has been enshrined in our state’s constitution that I don’t think it can be removed by the same means. I can envision a legislative majority on marriage equality during this decade if I’m feeling optimistic, but a two-thirds supermajority? Not in the foreseeable future, possibly not in my lifetime. The numbers are improving, but there’s still a long way to go. No, one way or another I believe it will be settled in a courtroom. My assumption has always been that when and if DOMA is struck down by the Supreme Court, sooner or later someone will file a lawsuit in Texas arguing that the state’s law discriminates against those who don’t have the wherewithal to travel to a more enlightened state to get married, and that this represents an unequal situation that cannot be allowed to stand. How long that might take – I assume it too would ultimately be decided by SCOTUS – I have no idea. But first things first. Let’s hope SCOTUS does the right thing on DOMA, and we’ll go from there.