Fifteen years after landmark gay rights case, same-sex couples in Texas still face challenges in court

“Fifteen years after landmark gay rights case, same-sex couples in Texas still face challenges in court” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

Theirs was an unlikely case.

John Lawrence and Tyron Garner weren’t in love, they weren’t a committed couple and it’s not clear that they were even having sex one September 1998 evening in Lawrence’s Houston apartment when a police officer burst in and arrested them for violating a Texas law that prohibited “deviate sexual intercourse with another individual of the same sex.” That law was rarely enforced, especially in homes — 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 some 15 feet apart when police arrived. But the two pleaded “no contest” to the sodomy charge, allowing them — and their team of advocate lawyers — to challenge the law itself.

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

That Supreme Court decision was June 26, 2003 — 15 years ago Tuesday. One law professor at the time said it “removed the reflexive assumption of gay people’s inferiority,” laying the legal groundwork for same-sex marriage. Without the immediate, presumptive criminal charge against LGBT people, new doors were opened — new jobs, new opportunities, new freedom in their skin.

The ruling “gave lesbian, bisexual and gay people back their dignity,” 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 — a gay man himself — argue Lawrence before the Supreme Court.

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

Ten years later, June 26 became an even more important milestone for gay rights when the high court struck down 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?

“Reach and ramifications”

When Lawrence 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 — the fact that his love for his partner made him a criminal — was one of the biggest obstacles to passing the ordinance, he recalled.

“One of the arguments I repeatedly heard was, ‘Your behavior, your relationships, are illegal,’” Phariss recalled. “’That’s illegal, so why should we protect that?’”

In the years since, San Antonio has passed that ordinance — and it offers much broader protections than Phariss dared advocate at the time. Now, similar protections 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 Obergefell ruling instructed 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.

“Texans are good people,” Phariss said. “Our Texas leadership is still stuck in the past on these issues. And they for whatever reason refuse to see LGBT individuals as full citizens.”

That Republican leadership asked the state’s highest court to take up another high-stakes gay rights case — out of Houston, like Lawrence – that’s become an emblem of the state’s continuing culture wars. Two taxpayers went to court in 2013 to keep the state’s 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’s still being fought after the Obergefell ruling.

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

Though gay couples can now legally marry, the plaintiffs claim, they don’t have all the same rights as straight couples.

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

The Texas Supreme Court found some merit in those claims, ruling in June 2017 that there’s still room for state courts to explore the “reach and ramifications” 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 high court ruling had guaranteed same-sex couples the same broad constitutional rights to marry as heterosexual couples, some of their fellow Texans — backed by state leaders — were trying to pull those rights back. And Texas courts seemed to be letting them.

“That almost casual dismissal of the rights of gay people was characteristic of Texas courts before Lawrence, and it appears to be characteristic of Texas state courts now,” said Dale Carpenter, a Southern Methodist University law professor who wrote a book on the Lawrence ruling.

“Something at stake”

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

“We have something at stake,” 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 “anti-LGBT industry.”

Fifteen years after Lawrence, for example, Texas’ dead anti-sodomy law remains on the books — it’s unconstitutional, and it can’t be enforced, but Texas lawmakers haven’t voted remove it. The law’s place in the penal code may not be legally significant, but it sends an important message, Smith said: to “demonize and stigmatize” LGBT people.

“It’s still there because there’s pressure from the anti-LGBT industry to leave something there in order to stigmatize LGBT people,” Smith said. “That industry continues to fight and try and create roadblocks for same-sex couples to marriage.”

Just in the last year, an Arlington art teacher was put on leave after she showed her students a photo of her and her now-wife. There’s no law explicitly preventing private employers from firing workers for their sexuality — and passing one is one of Smith’s top priorities, he said.

In February, two female Texas A&M University professors sued the federal government 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.”

At the Capitol, last year’s regular and special legislative sessions were dominated by debate over the so-called “bathroom bill,” which would have restricted transgender individuals’ access to certain public facilities. Smith expects he’ll spend next session on the defense against measures like that one, as well as a slate of “religious refusal” bills, which allow individuals claiming “sincere religious beliefs” 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 “absolutely no legal merit,” and Taylor said the far-reaching Obergefell is “here to stay.” But its future is uncertain, and likely to be decided by a higher court — maybe on a June 26 to come.

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 here.