Not yet, anyway. But it’s a matter of time.
Charles “Rocky” Rhodes is a professor at South Texas College of Law. He says the case that involves the Defense of Marriage Act, or DOMA, is narrowly focused.
“The provision of DOMA that’s under challenge here is the aspect of DOMA that prohibits the federal government from providing any kind of federal benefits or federal recognition to a couple who is married legally, a same sex couple, married legally under that state’s law.”
Rhodes says the other provision of DOMA that gets a lot of attention, the one covers how states deal with gay marriages performed elsewhere, is not in dispute in this particular case.
“So it will not invalidate Texas’ prohibition right now on recognizing any kind of marriage from another state in which there are legally-married same-sex couples.”
That’s even if the court decides the federal government has to give the same benefits and recognition to married gay couples as it does to married straight couples.
Rhodes says the main issue in the Prop 8 case is whether California violated the federal Constitution by outlawing same-sex marriages, after those marriages had been allowed for period of time.
“Other arguments focus on the fact that there really isn’t any reason to have a domestic partnership or civil union law that gives all the rights of marriage, without actually going ahead and granting same-sex marriage rights to same-sex couples. So those narrow arguments wouldn’t apply to Texas.”
But Rhodes says there is one, albeit unlikely, scenario in which the Prop 8 case could change the way Texas handles same-sex marriage. And that’s if the justices decide gay couples have the right to marriage under the equal protection clause of the 14th Amendment, which would apply to all states.
“And, therefore, anything contrary in the state laws, or the state constitutions, would be null and void. If that broader holding was adopted, Texas would have to start granting marriage licenses to same-sex couples, and grant divorces to same-sex couples.”
See SCOTUSBlog on the Obama administration’s position regarding DOMA and on the Court’s five options for the Prop 8 case, and Wonkblog for more. The Justice Department is arguing for a ruling that would affect California and the eight other states that provide same-sex couples with basically all of the rights of marriage in the latter. At this point, the most likely outcome in the Prop 8 case appears to be SCOTUS deciding that the Prop 8 proponents had no standing to appeal the lower court ruling, meaning that Prop 8 stays dead without any effect outside California; the DOMA case is to be argued today. But assuming that SCOTUS does strike down DOMA and Prop 8 in some fashion, I believe that it’s just a matter of time before some other lawsuit gets filed that will bring about the death of anti-gay marriage laws in Texas and elsewhere. While bills have been filed in this legislative session to remedy the situation in Texas, I don’t see that happening any time soon, if ever. Despite the greatly improved standing for marriage equality in Texas, the sad fact that this bit of bigotry was carved into our constitution means that it can’t be repealed by a simple majority vote in the Legislature. It will take another constitutional amendment, which means that a one-third minority in either chamber can kill it. I think the next generation of litigation will hit the Supreme Court before attitudes have changed enough to overcome that. Again, though, let’s see what the Court actually does with these cases first. We’ll know what the next steps are once these steps have been taken.