Reference no: EM133234411

Recent controversy over same-sex marriage highlights the tensions that emerge between the federal and the Texas constitutions.

In November 2005, Texans went to the polls to vote on Proposition 2 to amend the Texas Constitution, a measure aimed at prohibiting same-sex marriages in the state. Supporters of Proposition 2 wanted the ban on such marriages enshrined in the state constitution in order to prevent any future legislation supporting gay and lesbian marriages. The measure passed, with nearly 76 percent of voters supporting it.

In Obergefell v. Hodges (2015), the U.S. Supreme Court ruled 5-4 that marriage was a fundamental right guaranteed to same-sex couples by the due process clause and the equal protection clause of the Fourteenth Amendment of the Constitution. Writing for the majority, Justice Kennedy explained the Supreme Court opinion clearly: "The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied them." Although Texas was not one of the states involved in the Obergefell case, the ruling clearly applied to it.

One might have thought that the Obergefell decision would have ended debate over the legal status of same-sex marriage in Texas, superseding the provisions put into the Texas Constitution. But a few public officials sought to undercut the full effect of the U.S. Supreme Court ruling. In June 2015, Hood County Clerk Katie Lang said that she would refuse to issue same-sex marriage licenses because of her religious faith. Backtracking after a public furor broke out, she later agreed to allow staff members to issue the licenses. Attorney General Ken Paxton, a bitter opponent of same-sex marriage, advised county clerks in Texas that they could refuse marriage licenses to same-sex couples on religious grounds. According to Paxton, "Justices of the peace retain religious freedoms, and may claim that the government cannot force them to conduct same-sex wedding ceremonies over their religious objections." Threatened with a contempt citation from a federal judge, Paxton backed off, maintaining that he himself was not enforcing the laws that impeded gay marriage rights, only advising others about what courses of action could be pursued by public officials in Texas.

Additional complications arose in June 2017 when the Texas Supreme Court ruled that Texas courts could explore "the reach and ramification" of marriage-related issues resulting from the Obergefell ruling, including whether spouses of gay and lesbian public employees in Houston were entitled to marriage-related benefits. Having extended benefits to gay and lesbian spouses following Obergefell, the city of Houston appealed the case to the U.S. Supreme Court, arguing that Obergefell demanded an extension of spousal benefits to all married employees. The U.S. Supreme Court chose in December 2017 not to review the Texas Supreme Court's decision.

• Is Proposition 2 a violation of the equal protection clause of the U.S. Constitution?
• Should the personal religious views of a public official allow him/her not to enforce the law? OR Should additional provisions be added to the Texas Constitution that protect the religious beliefs of state officials in the performance of their duties while upholding the principles of the U.S. Constitution?
• In adhering to the Supremacy Clause of the U.S. Constitution, should lawmakers bring the Texas constitution in line with the Windsor and Obergefell cases by deleting the Proposition 2 provision? OR Should additional provisions be made in the Texas Constitution for Spousal benefits for homosexual couples?