A DISCUSSION OF LAW AND JOURNALISM

A Judge in Texas Discriminates. Bravo.

Wedding couple sitting

 

By Halina Schiffman-Shilo

Last October, LASIS reported that Rose Marie Belforti, a county clerk in upstate New York, refused to give gay couples a marriage license even after the state’s Marriage Equality Act was signed into law. Ms. Belforti said she was following her religious beliefs; the problem was that issuing marriage licenses was one of the key duties of her job.

As the Huffington Post and others have reported, a judge in Texas is doing something similar — but in reverse.

Judge Tonya Parker of Dallas County has announced that she will no longer marry heterosexual couples because she believes that the Texas prohibition against gay marriage is “not an equal application of the law.” And so heterosexuals arriving at her doorstep who want to get married are told, patiently and politely, the reason for her refusal to marry them, and are then referred to another judge.

LASIS wondered how it could possibly be legal for a judge to refuse to marry people based on their sexual orientation.

Since the other media outlets didn’t satisfy our curiosity, we investigated.  

In Judge Parker’s words:  “Performing marriage ceremonies is…a right and privilege invested in me under the Family Code. I choose not to exercise it as there are other ways of getting married.” And a quick look at Texas Family Code confirms this. The Code vests judges with the authority to perform marriages, but also lists other officials, such as religious leaders, to do the same. So, as Judge Parker has explained, while she has the power to marry people, she is not required to by law.

As for refusing to marry people based on their sexual orientation, this is where it gets interesting…but first, some background.

Passed in 2005, Section 32 of the Texas Constitution’s Bill of Rights limits marriage to the “union of one man and one woman” and prohibits the recognition of “any legal status identical or similar to marriage.” The language sends a straightforward message: Gay marriage and civil unions are not allowed in Texas.

Judge Parker, when referring to the equal application of the law, is referencing the equal protection clause of the 14th amendment to the U.S. Constitution, which prohibits states from denying “any person within its jurisdiction the equal protection of the laws.” This clause was put to the test in the marriage arena in the 1967 Supreme Court case of Loving v. Virginia, when an interracial couple in Virginia challenged the state’s prohibition on marriage between “a white person and a colored person.”

The Court wrote rather emphatically that, “Marriage is one of the ‘basic civil rights of man,’” and that “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” Replace “another race” with “the same sex” and we would have a constitutional doctrine allowing same-sex marriage.

Woulda, Coulda, Shoulda.  To date, we don’t have such a doctrine, so it is up to individual states to determine if their citizens have the right to get married.

In keeping with the spirit of the 14th amendment, many states’ constitutions have clauses that safeguard their citizen’s equal protection under the law, affirm their rights to life, liberty, and the pursuit of happiness, and prohibit discrimination based on certain criteria.

The Texas Constitution guarantees “equality under the law,” regardless of “sex, race, color, creed, or national origin.” Further, the Texas Family Code also prohibits marriage officiates from “discriminating on the basis of race, religion, or national origin.”

While this seems inclusive, you may have noticed that this list is not exhaustive. In fact, it does not include a prohibition on discriminating because of sexual orientation. This means that in Texas, unlike in New York, judges who perform marriages are free to discriminate as much as they want based on the couple’s sexual orientation. In refusing to perform marriages for heterosexual couples, Judge Parker is simply exercising her right to discriminate.

At the same time, she is also ensuring equal application of the law.

The Texas constitutional amendment, which defines marriage as “the union of one man and one woman,” is denying same-sex couples the right to marry their loved ones. This prohibition on marriage, which, may I remind you, the Supreme Court deemed a “basic civil right,” is not an equal application of the law. Judge Parker is equalizing the marriage playing field.

Judge Parker is openly gay.  As she put it, it is “oxymoronic…to perform ceremonies that can’t be performed for me.”

And so, as long as Texas does not allow same-sex marriage, and does not prohibit judicial discrimination based on sexual orientation, Judge Parker can refuse to marry straight people.

Let freedom ring.

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  1. [...] on Friday, a New York Law School blog post analyzed the legality of Parker’s decision, comparing her stance to a New York county clerk’s [...]

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