Two couples are one step closer to seeing Texas recognize same-sex marriage - a move that could affect the lives of thousands of people living in the overwhelmingly conservative Lone Star State.
Mark Phariss and Vic Holmes - who are asking for the right to be married - and Cleopatra De Leon and Nicole Dimetman - who are seeking state recognition of their Massachusetts marriage - filed the lawsuit De Leon v. Perry in October 2013 challenging Texas’ 2005 voter-approved ban on same-sex marriage and seeking equal marriage rights under the law.
In February, a Texas federal district court judge ruled in favor of the couples, on the basis that a ban on their marriage violated both the equal protection and due process rights of the plaintiffs. The 5th Circuit Court of Appeals is now reviewing the decision on appeal by the state of Texas
“We felt this was something that we needed to do,” said De Leon, who added that she and Dimetman felt obligated to take on this case for their 2-year-old son. “I don’t want to have to be looking over my shoulder, especially in times like childbirth.”
The two said they did everything they were supposed to do to ensure they would both have custody of the boy, including having Dimetman adopt him, but were still fearful something would go wrong.
“If anything were to happen to Cleo, I would have been begging some judge to give me my son,” said Dimetman. “It was pretty nerve racking. We had done everything possible that two responsible parents could do in that situation. You really need the default rules of your state to recognize you and see you as a family in order to have that peace of mind.”
More than 46,000 same-sex couples live in Texas, according to the Williams Institute at UCLA School of Law — 8,397 consider themselves married.
In its appeal, the state argues the voter-approved ban does not violate the constitution as states have always imposed restrictions on marriage partners based on state interest, according to an appellants’ brief filed July 28 by Texas Attorney General Greg Abbott’s office.
“The Constitution cannot be changed through court decisions, yet the district court’s reasoning fails to acknowledge any constitutional limits on the interpretive powers of the judiciary,” the brief notes.
The brief also maintains that marriage is for procreation, and the only way to naturally conceive is with one man and one woman.
Jonathan Saenz, president of Texas Values and an attorney, says the state has the right to limit marriage to one man and one woman because it’s in the state’s interest to preserve that type of family because studies show that’s where children do best.
“If you allow this so-called equality argument for simply the basis of someone saying, ‘We want a love relationship, so treat us equally.’ That reduces marriage to a private contract and has no connection to the reason that government has historically given its blessing to marriage,” Saenz said.
While some legal experts believe the decision regarding De Leon v. Perry could go the way of Utah, Oklahoma and Kentucky (all of which ruled bans on same-sex marriage are unconstitutional), there's still the anticipation of an overarching decision from the United States Supreme Court.
“Most people would say that when it does get to the Supreme Court, and eventually it will, it will probably be a very close decision,” said Al Kauffman, a law professor at St. Mary’s University School of Law in San Antonio.
While attitudes towards the gay, lesbian, bisexual and transgender community are changing, Kauffman said there’s still a legal argument that can be made against same-sex marriage.
“There are persons who feel that the historical basis of marriage was always between a man and a woman, and that the laws were all based on that philosophy and that approach,” Kauffman said. “The state certainly has very strong interests in maintaining that historical pattern.”
De Leon and Dimetman, both originally of San Antonio, say they have seen the conversation regarding same-sex marriage change over the years.
This social shift in public opinion is more evident in states and communities that once rejected the LGBT community.
“In San Antonio, there was a period of time where we didn’t feel comfortable holding hands in public,” Dimetman said. “We’re now seeing marriage equality sweep the nation.”
That’s because “there has been successful grassroots organizations fighting back,” particularly in places like San Antonio, says Jade Esteban Estrada, a 38-year-old activist in the LGBT community.
San Antonio hasn’t always been that way though, says Estrada, who was born and raised in the city.
“For years, whenever there was a LGBT uprising for a certain cause, it would get stamped out immediately by a conservative group,” Estrada said.
In the fall of 2013, San Antonio was the backdrop of a political battle as the San Antonio City Council considered expanding its nondiscrimination ordinance to include sexual orientation and gender identity.
The council voted in September in favor of the ordinance 8-3, but not without a fight from conservatives who claimed the ordinance would infringe on the religious liberties of those who oppose homosexuality or same-sex marriage. Houston passed a similar ordinance 11-6 in May.
“It really gave people the fuel to organize,” Estrada said, noting people of all backgrounds came together. “You would not see that [in San Antonio] 10 years ago.”
Despite the city’s left-leanings, Estrada called the fight for LGBT rights in San Antonio an uphill battle.
“What makes San Antonio a difficult giant to slay is the fact that we're coming from a very stark, Catholic, religious upbringing, one we've always held. It's innate in our culture as Mexican-Americans,” Estrada said.
De Leon, whose family is a mix of Spanish, Mexican and Asian, said the Latino culture is traditionally one of conservative social values, but that hasn’t stopped many from changing their mind about same-sex marriage.
In 2006, only 34 percent of Latinos nationwide said they favored same-sex marriage, according to a Pew Hispanic Center survey. But that has since changed significantly. In 2013, a little less than 50 percent of Latinos nationwide said they supported same-sex marriage. In 2012, Latino support for same-sex marriage was 52 percent, according to Pew.
In Texas, 46 percent of Latinos said they were in favor of same-sex marriage.
“My mom was an immigrant and Nicole’s parents were immigrants, and when you come with that immigrant experience… (there’s) that nagging pull to be of the old country,” De Leon said. “My mom would always say, ‘You’re such an American.’ But really, and truly, to be an American is to make your own way.”
The change in opinion stems from the rise in the U.S. born Latino, many of whom are distancing themselves from religion, said Mark Hugo Lopez, director of Hispanic research at Pew.
“In many respects (young Latinos) look a lot like other young people in the U.S., and that includes their support for allowing gays and lesbians to marry,” Lopez said.