In a little over a month, the nation’s highest court is expected to answer two burning questions – whether the U.S. Constitution requires states to license same-sex marriages, and whether it requires states to recognize same-sex marriages performed in other places. But in Texas, lawmakers are working on their own answers to each: No and no, thank you very much.
On Tuesday, the Republican-dominated Texas House of Representatives is scheduled to consider HB 4105, otherwise known as the Preservation of Sovereignty and Marriage Act. If enacted, the legislation would prohibit state or local government employees from recognizing, granting, or enforcing same-sex marriages. It would also prohibit state or local funds from being spent on “an activity that includes the licensing or support of a same-sex marriage.”
The bill is one of more than 20 measures introduced this session in Texas that LGBT rights groups view as blatant attempts to enshrine discrimination against gay and transgender people into state law. But the groups warn that HB 4105 is particularly dangerous in that it would essentially keep alive Texas’ ban on same-sex marriage, regardless of what the Supreme Court decides in June.
“Texas is pioneering a new strategy to prevent equality for its LGBT residents,” said Chuck Smith, executive director of Equality Texas, on a press call Monday. “At its core, HB 4105 seeks to subvert any ruling that would allow the freedom to marry for loving, same-sex couples.”
It’s not the first time state lawmakers – particularly those in the South – have tried to arm themselves against recent or forthcoming advancements for LGBT equality. Over the past two years, as same-sex marriage grew from being legal in just a handful of states to well over half the country, dozens of Republican lawmakers have tried to pass so-called “religious freedom” measures that in many cases would allow individuals, businesses, and government employees to discriminate against LGBT people on religious grounds.
The most recent states to enact such measures – Indiana and Arkansas – became the target of national outcry earlier this year, forcing lawmakers in both states to amend the legislation so as to make clear that businesses could not discriminate against patrons on the basis of their sexual orientation or gender identity. In February, Arkansas also passed a different measure barring cities and counties from enacting nondiscrimination laws that were more expansive than the state’s. Since Arkansas – like most states in the country – does not prohibit discrimination on the basis of sexual orientation or gender identity, that bill effectively eliminated the potential for LGBT citizens to win nondiscrimination protections at the local level.
But HB 4105 is something LGBT advocates haven’t seen before, sparking concern that the bill could inspire a new national movement to resist the arrival of marriage equality.
“The fear is … that if this effort in Texas succeeds that other states may seek to follow the same strategy,” said Rebecca Robertson, legal and policy director of the American Civil Liberties Union of Texas.
Despite accusations that HB 4105 is meant to roll back LGBT rights, Republican Rep. Cecil Bell, the bill’s lead sponsor, told msnbc he was mainly concerned with protecting the “sovereign right of states and people to define and regulate marriage.” Texas is currently one of 14 states whose ban on same-sex nuptials is still in effect.
“This bill does not do anything that puts any person in a lesser position than where they currently are,” said Bell, drawing a distinction between HB 4105 and “religious freedom” proposals. “It doesn’t change businesses’ ability to have their own guidelines for how they want to conduct their businesses. It simply codifies what we already do in Texas.”
But Robertson warned that HB 4105 sets up a “constitutional showdown,” pitting state law against an expected Supreme Court ruling in favor of marriage equality. A similar crisis unfolded in Alabama earlier this year when the high court justices cleared the way for same-sex couples to begin marrying there, while the state Supreme Court pumped the brakes. Same-sex couples haven’t been able to marry in the state since.
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“It’s chaos in Alabama,” Robertson said. “[Probate judges] don’t know how to execute these competing rulings, and that’s what HB 4105 is setting up for the state of Texas.”
Asked whether his bill passes constitutional muster, Bell said it’s “not without precedent” for states to resist Supreme Court rulings. As examples, he pointed to the 1857 Dred Scott decision in favor of slavery, and the 1954 Brown v. Board of Education case that found school segregation unconstitutional. Several southern states continued to block integration for years afterward.
“I’m not saying it’s good or bad,” said Bell of the South’s resistance to Brown, though as a child in Texas in the early 1970s, Bell said he saw “interesting challenges” unfurl from the decision. “We were put on buses with black children and white children, and neither body of kids wanted to be on the bus – both wanted to go to [the school] where we were closest,” he said.
“My point is not to bring my own childhood into it,” Bell continued. “If you simply say the Supreme Court should be upheld – period – you have to say that Lincoln was wrong,” he said, presumably referring to the Emancipation Proclamation issued six years after the Dred Scott ruling. “And I don’t think that Lincoln was wrong.”
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The likelihood of HB 4105 becoming law remains unclear. While lawmakers are scheduled to hear the bill in the full state House on Tuesday, there are over 200 other measures ahead of it, according to Kathy Miller, president of the Texas Freedom Network. The Texas House has only until Thursday at midnight to pass bills that originated in that chamber. So if there are any procedural issues or delays over the next three days, lawmakers may simply not have enough time to pass HB 4105 this session.
Additionally, LGBT advocates are hoping big businesses come out within the next week and put pressure on lawmakers to drop the bill altogether. Similar backlash occurred in response to “religious freedom” measures in Arizona, Arkansas, and Indiana over the past year, prompting those states’ Republican governors to either veto the legislation or call for changes. With Texas set to host the Super Bowl in 2017 and the men’s Final Four championship next year, all eyes will likely fall on the NFL and NCAA to see if those organizations condemn HB 4105 as forcefully as they did other bills considered by many to be anti-LGBT.