Charles “Rocky” Rhodes is a professor at South Texas College of Law. He says the case that involves the Defense of Marriage Act, or DOMA, is narrowly focused.
“The provision of DOMA that’s under challenge here is the aspect of DOMA that prohibits the federal government from providing any kind of federal benefits or federal recognition to a couple who is married legally, a same sex couple, married legally under that state’s law.”
Rhodes says the other provision of DOMA that gets a lot of attention, the one covers how states deal with gay marriages performed elsewhere, is not in dispute in this particular case.
“So it will not invalidate Texas’ prohibition right now on recognizing any kind of marriage from another state in which there are legally-married same-sex couples.”
That’s even if the court decides the federal government has to give the same benefits and recognition to married gay couples as it does to married straight couples.
Before the justices hear arguments in that case, they’ll listen to the two sides on Proposition 8.
That’s the amendment voters approved in 2008 to ban gay marriage in California.
Rhodes says the main issue in the Prop 8 case is whether California violated the federal Constitution by outlawing same-sex marriages, after those marriages had been allowed for period of time.
“Other arguments focus on the fact that there really isn’t any reason to have a domestic partnership or civil union law that gives all the rights of marriage, without actually going ahead and granting same-sex marriage rights to same-sex couples. So those narrow arguments wouldn’t apply to Texas.”
But Rhodes says there is one, albeit unlikely, scenario in which the Prop 8 case could change the way Texas handles same-sex marriage. And that’s if the justices decide gay couples have the right to marriage under the equal protection clause of the 14th Amendment, which would apply to all states.
“And, therefore, anything contrary in the state laws, or the state constitutions, would be null and void. If that broader holding was adopted, Texas would have to start granting marriage licenses to same-sex couples, and grant divorces to same-sex couples.”
But Rhodes predicts whatever the court decides in the Prop 8 case; it will be confined to what’s happening in California, and, perhaps, other states that already have domestic partnership or civil union laws — laws that do not exist in Texas.