Aside from a handful of headline-grabbing efforts to oppose the 2015 U.S. Supreme Court ruling legalizing gay marriage (Obergefell v. Hodges), the country has largely moved on from the once-controversial issue of same-sex marriage. According to a 2017 Pew Research Center poll, 62 percent of Americans support same-sex marriage while 32 percent oppose it.
But the LGBTQ community’s newfound rights are now at the center of a legal battle that questions the constitutionality of same-sex marriage.
Nashville-based lawyer and retired Judge Advocate General Chris Sevier and several plaintiffs filed a lawsuit (Harley v. Abbott) against Texas Gov. Greg Abbott, Attorney General Ken Paxton, and Dallas County Clerk John Warren late last year, shortly after Sevier and his colleagues were denied marriage licenses in Dallas County. Sevier self-identified as a machinist (someone sexually attracted to computers) while three other plaintiffs identified as polygamists.
“Polygamy marriage is at least as removed from reality as gay marriage,” Sevier told me in a phone interview. “They are all equally not a part of American tradition.”
Last month, Abbott, Paxton, and Dallas County Clerk Warren filed motions to dismiss Sevier’s case, according to court documents filed in U.S. District Court. That motion is currently pending.
The legal grievance states that the four were denied the rights same-sex couples now enjoy under the Equal Protection and Due Process Clause of the Fourteenth Amendment. Sevier is building the case on his claim that Secular Humanism (commonly associated with atheism) is a religion and that gay rights are not civil rights. To that first point, Sevier equates the battle for marriage equality with the “moral relativism” that he said is espoused by Secular Humanists (a notion that many within the Christian LGBTQ community would certainly dispute). If Secular Humanism is a religion, his argument goes, then the U.S. government cannot favor it over other religions.
Austin Kaplan, an Austin-based civil rights lawyer with extensive experience litigating civil rights cases, said the government isn’t “forcing anyone to get married to someone else of the same gender.”
The argument “that the government is forcing its ‘worldview’ on anyone by permitting same-gender marriage is completely misplaced,” he said in an email.
As for Sevier’s rebuke of gay rights as civil rights, Kaplan notes that the Obergefell case found sexual orientation both “normal sexuality and immutable.”
He said there is “a growing trend to extend Title Seven [of the Civil Rights Act] protections in the workplace to people on the basis of sexual orientation,” Kaplan added. “The Seventh Circuit Court of Appeals, covering Illinois, Wisconsin, and Vice President Mike Pence’s own Indiana, was the latest court to extend this protection to LGBT workers.”
Sevier maintains that same-sex marriage has not proven popular.
“There has not been a land rush on gay marriage,” Sevier said.
A 2017 poll disputes that claim. In June 2017, Gallup found that “61 percent of same-sex, cohabiting couples in the [United States] are now married, up from 38 percent” in June 2015, when the U.S. Supreme Court legalized same-sex marriage.
Grace Harley, one of the plaintiffs in Harley v. Abbott, said that she was misled by the gay community. In an email, Harley, who once identified as a transgender male, told me that she has now “awakened” to her true identity as a female after being misled by the LGBTQ community. She now advocates for an end to government-sanctioned same-sex marriages. In addition to individuals like Harley, Sevier said he has the support of religious groups like the Christian networking site SocialCross.org and the ministry Warriors for Christ, among others.
Sevier said he is optimistic that Abbott and Paxton will not defend same-sex marriage within Texas, just as former U.S. Attorney General Eric Holder chose to not defend the Defense of Marriage Act, a 1996 federal law defining marriage as between one man and one women, seven years ago.
While Abbott has not commented on the recent litigation, his past public statement on Obergefell v. Hodges has made his personal stance clear.
“The Supreme Court has abandoned its role as an impartial judicial arbiter and has become an unelected nine-member legislature,” he said. “Five justices on the Supreme Court have imposed on the entire country their personal views on an issue that the [U.S.] Constitution and the court’s previous decisions reserve to the people of the states.”
As the LGBTQ community becomes evermore accepted in American society, Sevier and his colleagues are ratcheting up their legal efforts. No one in his coalition aims to marginalize LGBTQ individuals or prevent same-sex partnerships, he said. He contends that this is purely a debate over the constitutionality of same-sex marriage.
“We plan to introduce bills in two states this year,” he said, referring to bills he said will be called The Marriage and Constitution Restoration Act. “Next year, we’ll introduce [similar bills] in 34 states that [define] marriage between man and women as natural, neutral, and non-controversial.”
Kaplan doesn’t see merit in any of the arguments presented by Sevier and his team.
“These types of [lawsuits] wrongly pit the First Amendment protection for free exercise of religion against 14th Amendment equal protection and other anti-discrimination laws,” Kaplan said. “Fringe groups are trying to use this playbook, and use the courts, to undercut years of progress on civil rights. So far, they have been largely unsuccessful. But it is frightening.”l
