Texas is truly on a tear. In recent months the state has banned abortion after 6 weeks, proposed wildly gerrymandered Congressional maps, and passed a law barring trans kids from playing sports. And now one lawmaker has asked the state’s attorney general if a pesky landmark Supreme Court decision on marriage equality means Texans have to recognize gay marriages.
Specifically, Republican State Rep. James White sent a letter to Attorney General Ken Paxton last week seeking his official legal opinion on whether the 2015 decision Obergefell v. Hodges, which requires states to license and recognize same-sex marriages, means that private citizens must also recognize those marriages. After all, White writes, Texas state laws defining marriage as the union of one man and one woman haven’t been officially amended or repealed.
Paxton’s office did not respond to Jezebel’s request for comment on White’s letter before publication time. The AG’s website says that most opinions are released within 180 days, but the amount of time varies based on research involved and how many briefs are received.
White uses a twisted legal argument, claiming that the Supreme Court doesn’t actually erase state laws it finds to be unconstitutional—it just leaves them dormant and unenforced by state officials. Private citizens, meanwhile, aren’t bound by those rulings. If the Attorney General were to agree with White, it could allow businesses to refuse to serve gay couples a la Masterpiece Cakeshop and maybe even let individuals sue gay couples for breaking the never-revoked law.
“The fact that a federal district court has enjoined state officials from enforcing the Texas marriage laws in no way affects the existence or validity of those laws with regard to private parties, who are not even bound by the Fourteenth Amendment — let alone the Supreme Court’s purported interpretations of it.”
If this is starting to sound familiar, that’s because a strong proponent of this legal theory is Jonathan Mitchell, the mastermind of the Texas abortion bill’s bounty-hunting scheme. Mitchell also despises the Supreme Court’s two major LGBTQ cases: In September, he filed a brief with the Supreme Court in a different abortion case out of Mississippi, in which he claimed that sex with a same-sex partner (Lawrence v. Texas, 2003) and marriage equality (Obergefell) are court-invented rights that are “just as lawless as Roe” and invited the court to overturn them alongside Roe.
White’s anti-gay letter is just the latest example of how assaults on abortion access affect rights far beyond abortion. Roe is a link in a chain of privacy cases involving the ability to use birth control, have same-sex relationships, marry who you want, and more. It’s part of an entire class of personal freedoms known as the “liberty doctrine,” with a basis in the 14th Amendment’s right to privacy, per a 2018 analysis from the Center for Reproductive Rights. Overturning or weakening Roe opens the door to dismantling other privacy rights.
Even one high-profile LGBTQ advocate who said in November 2016 that marriage equality was not at risk after Trump’s election has admitted he was wrong after seeing White’s letter over the weekend. Dan Canon represented several couples whose cases challenging Kentucky’s gay marriage ban were consolidated in Obergefell; he also litigated the case of Kim Davis, the Kentucky clerk who wouldn’t issue marriage licenses to gay couples. He wrote on Twitter on Sunday: “The unwillingness of SCOTUS to do anything about SB8 sent a clear signal to red-state legislatures: ‘do whatever you want, the courts won’t stop you.’ TX GOP heard that message loud and clear. Look for this in all other red states too, certainly by next session if not before.”
It looks like Texas lawmakers aren’t waiting for the Supreme Court to issue a decision on abortion before they pounce on other rights.