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Fifteen Years After Landmark Gay Rights Case, Same-Sex Couples in Texas Still Face Legal Hurdles

Same-sex challenges in Texas
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Theirs was an unlikely case.

John Lawrence and Tyron Garner weren鈥檛 in love, they weren鈥檛 a committed couple and it鈥檚 not clear that they were even having sex one September 1998 evening in Lawrence鈥檚 Houston apartment when a police officer burst in and聽聽for violating a Texas law that prohibited 鈥渄eviate sexual intercourse with another individual of the same sex.鈥 That law was rarely enforced, especially in homes 鈥 how often, after all, do police appear in private bedrooms? In the Lawrence case, officers entered in response to a false report of a weapons disturbance.

The factual details of that night are often called into question; Lawrence told one interviewer that he and Garner were seated聽聽when police arrived. But the two pleaded聽聽to the sodomy charge, allowing them 鈥 and their team of advocate lawyers 鈥斅爐o challenge the law itself.

Ultimately, they won, and it was their unlikely case that sparked a sweeping ruling from the nation鈥檚 highest court, one that overturned not just Texas鈥 ban on sodomy but 13 similar laws across the country.

That Supreme Court decision was June 26, 2003 鈥 15 years ago Tuesday. One law professor聽聽said it 鈥渞emoved the reflexive assumption of gay people鈥檚 inferiority,鈥 laying the legal groundwork for same-sex marriage. Without the immediate, presumptive criminal charge against LGBT people, new doors were opened 鈥斅爊ew jobs, new opportunities, new freedom in their skin.

The ruling 鈥済ave lesbian, bisexual and gay people back their dignity,鈥 said Camilla Taylor, a Lambda Legal attorney who started with the legal advocacy group in 2003, just in time to watch her colleague, Paul Smith 鈥斅燼 gay man himself 鈥 argue Lawrence before the Supreme Court.

鈥淓veryone knew this case had the power to change the world. The court gave us everything we asked for and more 鈥 and went big, just as we demanded,鈥 Taylor said.

Ten years later, June 26 became an even more important milestone for gay rights when the high court聽聽the Defense of Marriage Act. And then, in 2015, the date again gained new significance with the ruling known as Obergefell that legalized same-sex marriage nationwide.

But this year, as the date rolls around, LGBT Texans are still reckoning with the legal and political landscape in a state where they have few protections against discrimination and their rights as couples are again being questioned in court.

Fifteen years later, some wonder, how much progress have same-sex couples in Texas really made?

鈥淩each and ramifications鈥

奥丑别苍听Lawrence聽came down 15 years ago, Mark Phariss was fresh off an unsuccessful push for an anti-discrimination ordinance to protect gay city employees in San Antonio. The anti-sodomy law 鈥斅爐he fact that his love for his partner made him a criminal 鈥斅爓as one of the biggest obstacles to passing the ordinance, he recalled.

鈥淥ne of the arguments I repeatedly heard was, 鈥榊our behavior, your relationships, are illegal,鈥欌 Phariss recalled. 鈥溾橳hat鈥檚 illegal, so why should we protect that?鈥欌

In the years since, San Antonio has passed that ordinance 鈥斅燼nd it offers much broader protections than Phariss dared advocate at the time. Now,聽聽are in place in a dozen cities, and in a growing number of school districts, across the state. Phariss is now married to Vic Holmes, an Air Force veteran and his partner of two decades. And Phariss is running as a Democrat for Texas Senate. His Republican opponent, Angela Paxton, is married to Texas Attorney General Ken Paxton, who in the immediate aftermath of the聽Obergefell谤耻濒颈苍驳听聽county clerks in Texas that they could refuse to grant marriage licenses to same-sex couples. Phariss said he’s confident the race will be decided based on the issues.聽

鈥淭exans are good people,鈥 Phariss said. 鈥淥ur Texas leadership is still stuck in the past on these issues. And they for whatever reason refuse to see LGBT individuals as full citizens.鈥

That Republican leadership聽聽the state鈥檚 highest court to take up another high-stakes gay rights case 鈥斅爋ut of Houston, like Lawrence 鈥撀爐hat鈥檚 become an emblem of the state鈥檚 continuing culture wars. Two taxpayers went to court in 2013 to keep the state鈥檚 biggest city from awarding spousal benefits to the same-sex partners of government employees. That case started before same-sex marriage was legalized, but it鈥檚 still being fought after the聽Obergefell听谤耻濒颈苍驳.

Jonathan Saenz, president of the conservative nonprofit聽Texas Values and an attorney for the taxpayers, said the lawsuit aims to hold the city of Houston accountable for unlawfully providing spousal benefits 鈥斅爓hich he said is still illegal under state law.

Though gay couples can now legally marry, the plaintiffs claim, they don鈥檛 have all the same rights as straight couples.

Obergefell聽may require States to license and recognize same-sex marriages, but that does not require States to give taxpayer subsidies to same-sex couples,鈥 they聽聽in a 2015 court filing.

The Texas Supreme Court found some merit in those claims,聽that there鈥檚 still room for state courts to explore the 鈥渞each and ramifications鈥 of the marriage ruling and sending the case back for a Houston court to consider.

For same sex-couples, it was a gut punch: After a聽聽had guaranteed same-sex couples the same broad constitutional rights to marry as heterosexual couples, some of their fellow Texans 鈥斅燽acked by聽聽鈥 were trying to pull those rights back. And Texas courts seemed to be letting them.

鈥淭hat almost casual dismissal of the rights of gay people was characteristic of Texas courts before聽Lawrence, and it appears to be characteristic of Texas state courts now,鈥 said Dale Carpenter, a Southern Methodist University law professor who wrote a book on the聽Lawrence听谤耻濒颈苍驳.

鈥淪omething at stake”

That case is personal for Phariss, who鈥檚 on his husband鈥檚 state health insurance through the University of North Texas Health Science Center.

鈥淲e have something at stake,鈥 he said.

For Chuck Smith, the CEO of Equality Texas, an LGBT advocacy group, the case is just one on a longer list of fights against an enemy he calls the 鈥渁nti-LGBT industry.鈥

Fifteen years after聽Lawrence, for example, Texas鈥 dead anti-sodomy law聽聽鈥 it鈥檚 unconstitutional, and it can鈥檛 be enforced, but Texas lawmakers haven鈥檛 voted remove it. The law鈥檚 place in the penal code may not be legally significant, but it sends an important message, Smith said: to聽鈥渄emonize and stigmatize鈥 LGBT people.

鈥淚t鈥檚 still there because there鈥檚 pressure from the anti-LGBT industry to leave something there in order to stigmatize LGBT people,鈥 Smith said. 鈥淭hat industry continues to fight and try and create roadblocks for same-sex couples to marriage.鈥

Just in the last year, an Arlington art teacher聽聽after she showed her students a photo of her and her now-wife. There鈥檚 no law explicitly preventing private employers from firing workers for their sexuality 鈥斅燼nd passing one is one of Smith鈥檚 top priorities, he said.

In February, two female Texas A&M University professors聽聽and a Catholic group contracted by the government to administer a refugee program. The couple claimed they were denied a chance to become foster parents for refugee children because they didn’t “mirror the Holy Family.鈥

At the Capitol, last year鈥檚 regular and special legislative sessions were dominated by debate over the so-called 鈥渂athroom bill,鈥 which would have restricted transgender individuals鈥 access to certain public facilities. Smith expects he鈥檒l spend next session on the defense against measures like that one, as well as a slate of 鈥渞eligious refusal鈥 bills, which allow individuals claiming 鈥渟incere religious beliefs鈥 to deny certain services or products to gay couples.

In the meantime, advocates have their eyes on a Harris County district court, where the Houston same-sex marriage benefits case is set for trial in January.

Smith said the case has 鈥渁bsolutely no legal merit,鈥 and Taylor said the far-reaching聽Obergefell聽is 鈥渉ere to stay.鈥澛燘ut its future is uncertain, and likely to be decided by a higher court 鈥斅爉aybe on a June 26 to come.

This article in the Texas Tribune.

Disclosure: Southern Methodist University, Equality Texas, the University of North Texas and Chuck Smith have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them聽.

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Fifteen Years After Landmark Gay Rights Case, Same-Sex Couples in Texas Still Face Legal Hurdles