The devil stays busy in Texas.
Nearly two months ago, that state enacted the nation’s most draconian abortion law, which bans the procedure after six weeks, even in cases of rape or incest. That was just the floor for Texas Republicans. Now they may be looking to do to same-sex marriage what they’ve done to reproductive rights — effectively abolish it.
In a letter sent to Texas Attorney General Ken Paxton last week, James White, a state representative, asked if state statutes have precedence over federal laws. Or, as White put it, “Whether Obergefell v. Hodges . . . requires private citizens to recognize homosexual marriages when the law of Texas continues to define marriage exclusively as the union of one man and one woman.”
Obergefell v. Hodges is the landmark Supreme Court decision that allowed same-sex couples to “exercise the fundamental right to marry.” Since 2015, nearly 300,000 same-sex couples have wed. But Texas being Texas, the state never changed its own narrow definition of marriage to reflect that historic ruling.
What White wants is a discriminatory do-over for his state to disregard the rights of same-sex couples to marry.
Under the malevolent hand of Governor Greg Abbott, the state’s Republican-led Legislature is waging a tireless campaign against American history, voting rights, reproductive rights, and the trans community. On Monday, the governor signed into law a bill that bans trans youth from playing on school teams that correspond with their gender identity.
This is very on-brand for the nation’s second-most populous state. In Texas, Republicans aren’t impeding progress. They’re turning back the clock to preserve dangerous, exclusionary straight white male hegemony.
To be clear, White, the Texas state representative against “homosexual marriages,” is Black. But don’t get it twisted. There have always been Black people who mortgage their souls to enjoy whatever crumbs of privilege and status their service to white supremacy will allow.
The Texas GOP is seizing an opportunity. With the most conservative US Supreme Court in more than 80 years, the state’s Republicans are probably envisioning a day when that 6-3 majority will overturn Obergefell. If the Texas Legislature permits the state’s definition of marriage to outweigh federal law, it will inevitably provoke a Supreme Court challenge. And recent history dictates that while the high court could decline to act against marriage equality, it won’t stop Texas from doing exactly that.
Twice, the Supreme Court has refused to block Texas’s six-week abortion ban. While the court will review legal challenges to the law next Monday, it will continue to allow it to be enforced. Justice Sonia Sotomayor, one of four dissenters, called the court’s order “catastrophic.”
“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand,” Sotomayor wrote in her dissenting opinion.
She also cautioned her colleagues to “not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.” As with Roe v. Wade, there is a potential threat that if Texas Republicans get their way, same-sex marriage won’t be protected by the sanctity of precedent or the rule of law.
Other Republican-led legislators see Texas as a template for their own discriminatory efforts. In Virginia’s hotly contested gubernatorial race, Trump acolyte Glenn Youngkin claims that he supports the legality of same-sex marriage, but is personally against it. That’s hair-splitting campaign speak. After so many years, same-sex marriage shouldn’t even be a talking point, except that desperate Republicans try to mine victory from manufactured cultural divisions.
While stumping last Saturday for Terry McAuliffe, Virginia’s Democratic gubernatorial candidate, former president Barack Obama called out the GOP for its “phony, trumped-up culture wars.” That’s the same point Jessica González, a Democratic Texas state representative and member of its LGBTQ caucus, made after White’s anti-same-sex-marriage letter went public. “Despite this year’s red meat agenda in the Texas Legislature,” she said, “Republican lawmakers want to continue waging their cultural war against the LGBTQ+ community rather than passing laws that create a safe & accepting state for ALL Texans.”
With Abbott at the helm, Texas has become a petri dish of lies, marginalization, and disenfranchisement. GOP legislators are threatening rights because they now expect the Supreme Court to refuse to block even their most extreme measures. Texas has effectively banned abortion; marriage equality could be next. And what happens in Texas won’t stay in Texas.