THE BLOG

Messing With Texas on Marriage

05/13/2015 06:05 pm ET | Updated May 13, 2016

Recently, Texas bewildered the rest of the nation as it overreacted to the Jade Helm 15 military exercise taking place this summer. Because Texas was labeled "hostile" territory on maps of the simulated battlefield for the exercise, some Texans worried that the exercise would be used as an excuse to take over Texas by declaring martial law and confiscating Texans' guns.

Of course, pundits scoffed at the suggestion and derided Texas Governor Greg Abbott for ordering the Texas State Guard to monitor the military exercise. Reacting to the overreaction, the federal government has sought to assuage the concerns of the paranoid.

But the federal government might wish to rethink its stance on the exercises in light of this week's moves in the Texas legislature regarding same-sex marriage. Anticipating the result in the same-sex marriage cases recently argued before the U.S. Supreme Court, the Texas legislature is considering a bill that would prohibit state and local officials from issuing or recognizing the marriage licenses of same-sex couples.

Through this bill, the Texas legislature is trying to send a message to the Supreme Court as it considers whether to extend the right to marry to same-sex couples nationwide. The message is undoubtedly that more conservative areas of the United States will actively resist any attempt to extend the right to marry to same-sex couples. They will try to slow the progress of the LGBT movement by ensuring that any pro-LGBT decision from the Supreme Court is bogged down in litigation for years to come.

Though far from unexpected, this proposed legislation is wholly without foundation. Ostensibly, the bill aims to protect the sovereignty of the State of Texas over the definition of marriage. Indeed, the second section of the bill states that "[T]he purpose of this Act is to affirm that the definition and regulation of marriage is within the sole authority and realm of the separate states and the people within those states."

But that simply is not true. As someone who has practiced and taught federal tax law for many years, I can tell you that the federal government generally defers to the states on the definition of marriage, but it does often meddle with that definition for purposes of determining who is married under federal law. So, to say that the states have "sole authority" over the definition and regulation of marriage is incorrect as a matter of fact. What's more, we are quickly approaching the 50th anniversary of the U.S. Supreme Court's decision in Loving v. Virginia, a case in which the Court struck down the remaining state laws prohibiting interracial marriage -- including Texas's.

That makes you wonder what the state legislators who support the pending bill would say were they asked whether Texas should similarly be permitted to reinstitute its ban against interracial marriage in defiance of a U.S. Supreme Court decision. After all, then, as now, the Supremacy Clause of the U.S. Constitution provides that the Constitution is the "supreme Law of the Land... , any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

So, is this really about states' rights or is it just another instance of states' rights being used as code for a license to discriminate?

The answer becomes clearer when you recall that now-Governor Abbott was Attorney General of the State of Texas two years ago when the Supreme Court decided United States v. Windsor. Then-Attorney General Abbott (along with a number of other state attorneys general) joined an amicus brief in the Windsor case that urged the Supreme Court to uphold section 3 of the federal Defense of Marriage Act. At that time, section 3 of DOMA prohibited the federal government from legally recognizing same-sex marriages validly entered into in states that had extended the right to marry to same-sex couples. In other words, then-Attorney General Abbott urged the federal government to override state determinations of who could marry. Where was the concern then for "states' rights" and the "sole authority" of each state to determine who is married?

Depending on how the Supreme Court rules in the same-sex marriage cases it is currently considering, the federal government might find it convenient having the military in Texas at a time when that state's legislature is contemplating open defiance of the U.S. Constitution, which each of the legislators has sworn to "preserve, protect, and defend."