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Texas ruling sign of future, observers say

SAN ANTONIO, Texas (BP) — A federal judge’s decision striking down a Texas marriage law could be a sign of the loss of religious liberties for all Americans, according to some legal and religious experts supportive of traditional marriage.

United States District Judge Orlando Garcia’s ruling on Wednesday (Feb. 26) against Texas’ 2005 marriage amendment ignores fundamental gender distinctions and the constitutional right of the states to define marriage, said supporters of the law.

“It starts on a false premise that the federal government has the right to regulate marriage,” said Fort Worth attorney Shelby Sharpe in his analysis of the ruling. Sharpe defends religious liberty cases across the U.S.

In just two months, federal judges have ruled unconstitutional the marriage laws in six states. Texas became the seventh. Supporters of the constitutional amendment codifying Texas’ definition of marriage as the union of one man and one woman are confident the U.S. 5th Circuit Court of Appeals in New Orleans will overturn Garcia’s ruling but are less optimistic about the Supreme Court’s decision.

The Texas law remains in effect pending appeals.

The case brought by two homosexual couples challenged the law’s two provisions. Cleopatra De Leon and Nicole Dimetman were married in Massachusetts and filed to have Texas recognize their union. Vic Holmes and Mark Phariss, who share a home in Plano, want to legally marry in their home state.

A decision from the Supreme Court on any of the same-sex marriage cases could nullify Texas’ law as passed by 76 percent of the voters, and elevate homosexuality to a protected minority status, Sharpe said. He argues that the case for minority status should be based, in part, on “factors of non-voluntary conduct” such as skin color, race and ethnicity. Homosexuals are not born into such a group but, by their actions, have developed into one. The Equal Protection Clause does not protect individuals according to their conduct, he said.

But such a distinction, if made by the Supreme Court, would pit Americans’ religious liberties against civil rights. That is a legal battle Sharpe said Christians will lose.

“You are going to be unable to refuse,” Sharpe said.

Pastors refusing to perform same-sex marriages could be sued. Christian business owners could suffer the same plight. Sharpe said the undefined right (equal protection under the law) will trump the written law of religious liberty as noted in the First Amendment.

Garcia’s decision, building upon recent court rulings, reinforces the premise that homosexuals are a protected minority group. He stated, “Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process.”

Although pleased with the decision, reaction from homosexual rights advocates was tempered by Garcia’s stay of the decision, essentially keeping the law intact while under appeal.

“This is a historic day in the heart of the South, and I can’t stress enough how important it is to move quickly until loving couples in all 50 states feel the full reach of this victory for equality,” said Chad Griffin, president of politically powerful Human Rights Campaign (HRC), in a prepared statement.

Gay, lesbian, and transgender advocacy groups like HRC have long couched their call for homosexual “rights” in the same terms as the Civil Rights movement.

Garcia’s written decision reflected that sentiment. He said, “Plaintiffs allege they have suffered state sanctioned discrimination, stigma, and humiliation as a result of Texas’ ban on same-sex marriage. Plaintiffs claim they are considered inferior and unworthy under Texas law,” he wrote.

Many African Americans like Barry Calhoun and Tony Mathews balk at such rhetoric and admit they are offended by the comparison.

“The civil rights issue was one of ethnicity and not giving the God-given rights to all people, primarily blacks,” said Calhoun, 54, missions director at North Garland Baptist Fellowships and the Southern Baptists of Texas Convention’s director of mobilization and fellowships.

“Basic rights were being withheld based on skin color and not moral character and behavior. No one here is saying that those of same-sex attraction are inferior to those of other ethnicities. This is not an ethnic issue. It is a moral issue,” he said.

Mathews, Calhoun’s pastor, concurred.

“I also think that’s it’s very sad when supporters of same-sex marriage use the dark, tragic history of African Americans to gain special rights for two men or two women who want to marry each other. For me, it is deeply troubling to hear people compare gay rights with civil rights. When the Bible defines something as being incorrect, we cannot declare that act to be socially or legally correct.”

“The whole premise of that argument is fallacious. Every law creates inequality in some fashion,” said Dave Welch, executive director of the Houston Area Pastor Council.

If a state’s definition of marriage as one man and one woman discriminates against same-sex couples it also discriminates against polygamists or other group marriages, Welch said. Other laws regulating marriage could be deemed equally discriminatory.

But, Welch added, the argument for same-sex marriage is about more than state-endorsed institutions. There is an underlying subtext nullifying distinctions between men and women, he said.

Calhoun asked, “Who are we as mortal men and women to tell the God of creation that he has been wrong for thousands of years as it relates to marriage? The created thing is saying to the creator, ‘I know better.'”

Charlie Howard, former Texas state legislator and co-author of House Joint Resolution 6 that became the state marriage amendment, voiced his frustration with the federal government’s imposition into state affairs.

“It was a good law. That’s why we put it up as a constitutional amendment. It gives it more credence,” said Howard from his home is Sugar Land, Texas.

Same-sex marriage was not being pressed so strongly just nine years ago. But, Howard said, “We had the foresight to see what was coming down the pike.”

Regardless of how laws are shaped, the love of Christ is still effective in changing hearts, those the Southern Baptist TEXAN interviewed affirmed.

“As I’ve always said,” Mathews added, “we must never condone the harassment and mistreatment of people based on their sexual orientation. We must, however, be willing to offer the love of Christ to all of humanity who so desperately need the Lord.”
Bonnie Pritchett is a correspondent for the Southern Baptist TEXAN (www.texanonline.net), newsjournal of the Southern Baptists of Texas Convention. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).

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  • Bonnie Pritchett/Southern Baptist Texan