With the national battle for marriage equality waging across the states following the historic U.S. Supreme Court ruling on same-sex marriage last year, a set of couples in Texas—backed by a high-powered law firm—vowed to take up the fight here. Challenging Texas’ ban on same-sex marriage, one couple wishes to wed while the other hopes their home state will recognize their lawful Massachusetts union. San Antonio, still reeling from its own city-centered LGBT rights battle, plays an integral role (in more ways than one) as ground zero for the latest legal battle for marriage equality.
At a mutual friend’s birthday party in 1997, Mark Phariss, at the time a practicing San Antonio-based attorney, met Victor Holmes, who was stationed at Brooks Air Force Base. Instantly enamored by Holmes, Phariss couldn’t shake the feeling.
“It was love at first sight for me,” he said during an interview from his Plano, TX, home.
But to Phariss’ dismay, Holmes was taken—he even had a date with his current boyfriend that very night. So Phariss played the waiting game.
As months progressed, the friendship blossomed and eventually Holmes ended his relationship and got serious with Phariss. Instead of dinner and a movie, the new couple had their first date at a local Human Rights Campaign meeting, hosted by a mutual friend and attended by Betty DeGeneres, national LGBT activist and mother of openly gay entertainer Ellen DeGeneres. Smitten, the couple moved in together a few months later. But after sharing a home for nearly two years, circumstances put a major test to the happy couple. As a member of the Air Force, Holmes was required to move to San Diego. For 11 years Pharris and Holmes played another waiting game, keeping their relationship strong until they could reunite geographically.
Hopping from California to Biloxi, Miss., (three years) to Little Rock, Ark., (three years) to at least comparably closer, Wichita Falls, TX, (four years), Holmes longed to come home to his partner, who had by then left SA for a job in Plano. Separated by hundreds of miles, the couple refused to give up, putting in the time to commute and communicate at any given chance, deflecting cynicism expressed by even close friends at the couple’s ability to conquer the distance.
“We called each other every morning and every night—it was the highlight of my day,” said Holmes.
While hard to imagine in the internet age, the relationship carried on before the ubiquity of wireless technology. Like a modern-day text, Holmes sent notes to his partner with a pager that translated numbers and symbols into messages like, “Will be home late.” His favorite message, Holmes fondly recalls, was **141—or, “I love you,”—used often before going on special assignment from the Air Force, where Holmes would be unreachable for multiple days.
“I love him no matter where he is or no matter where I am,” said Holmes. “Instead of dwelling on where empty space was when I got home, I focused on where home would one day be—and that’s how I got through the whole thing.”
When asked how they kept the relationship alive despite roughly 11 years apart, Phariss answered without reservation, “It was easy because we knew we didn’t want to be with anyone else. It didn’t even cross our minds that we wouldn’t last.”
Their perseverance paid off, as they plan to celebrate their 17th year together this August. But rather than solidifying their hard-won relationship with marriage, as many similarly committed couples do, Holmes and Phariss are once again playing a waiting game, this time to see if they’ll be allowed to wed legally in Texas. Why would they voluntarily embark on yet another challenge, knowing full well they’ll face an uphill battle in Texas, a state as red and as adverse to LGBT rights as they come?
Pharris has long been actively involved in LGBT rights groups and issues. He served as a governor for HRC (inviting late Democratic Texas Gov. Ann Richards to speak at a black-tie dinner in 1998) and fought on the frontlines of the initial battle to get an LGBT non-discrimination ordinance passed in San Antonio in 1997. When chatting with Phariss about the massive controversy and subsequent backlash following the recent passage of the NDO here in San Antonio this summer, he chuckled, “Imagine going back in time 16 years to get a non-discrimination rule passed.”
On the present matter, Phariss was more serious. “We want to get married because we love each other and we find it inequitable that we aren’t allowed to,” said Phariss, talking emphatically over the playful barking from their three pet Beagles. “A straight couple can meet at the bar on a Sunday night, go to a court clerk’s office on Monday morning, apply for a license and 72 hours later, they can get married.”
“Vic and I have been together almost 17 years and can’t do that—there’s something wrong there. That’s an injustice,” he concluded.
After two years of dating, Nicole Dimetman and Cleopatra De Leon’s relationship reached a defining moment. Both University of Texas—San Antonio graduates, Dimetman decided to leave SA to pursue graduate school at Syracuse University in upstate New York. The prospect of a long distance relationship didn’t appeal to the couple, and so De Leon packed up her belongings, quit her job and followed Dimetman out the door.
“Have you ever been to upstate New York?,” asked Dimetman, during a phone interview from the couple’s home, now located in Austin. “I loved the program, but in terms of weather and job opportunities, it’s not this huge, awesome metroplex. So it was a pretty intense commitment on Cleo’s part.”
On the phone with her partner, De Leon chimed in.
“Yeah, it really cemented our relationship,” she said.
A member of the Air Force, De Leon likely didn’t relish the move, having completed two years abroad on active duty, followed by another two at the former Kelly Air Force Base and then a three-year stint with the Texas Air National Guard at Lackland. But her devotion to Dimetman superseded the comforts of Texas living.
When the 14-month grad school program was up, the couple returned to their home state and began to plan their future together. They first debated whether to have a celebration (obviously, non-legally binding) in Texas with friends and family.
“We kicked around the idea of having a big deal here in Texas but it just didn’t feel genuine or authentic or real, so we really didn’t have a choice,” said De Leon. “We hoped Texas would change its laws somewhere down the line. But we were talking about having a family and we definitely didn’t want to start that without being married.”
So, in September 2009, the native Texans flew to Boston, Mass., to wed—most of their loved ones remained absent from the ceremony due to travel expense.
With an already unconventional start to their marriage, the couple went through more unusual hoops to start a family. When De Leon gave birth to their son, Dimetman was not automatically considered the other parent, as in opposite-sex birth certificates; instead, she was required to follow the time-consuming and costly adoption process, which meant hiring a lawyer, participating in stringent home study evaluations and a criminal background check.
“It was very uncomfortable,” said Dimetman of the long, bureaucratic procedure. “If our marriage was recognized, I wouldn’t have had to do it.”
After five years of marriage and eight years in a relationship, the partnership had grown into a family. Yet, the new mothers still grapple with their lack of formal recognition from the state they call home.
“Imagine you are our son. How do you explain to him we are married but not really married?” De Leon asked semi-rhetorically. “It’s kind of a weird conversation. We are thinking about our life together [but] also his emotional and intellectual development. What we would like to do is have this case do away with all this weirdness, so when he’s at an age that we could explain all this to him, it wouldn’t be an issue.”
The idea of undergoing another long and emotionally draining process didn’t deter Dimetman and De Leon; having their son was enough to reach a tipping point to action.
“We thought for a long time about whether or not to do it, but just something inside of us … something just changed in us when we became parents,” said Dimetman. “We just want the best for him and want to do everything that we can possibly do to make his life as good as it can be.”
“Yeah, we were scared,” she continued. “We thought, ‘This is crazy and we are really busy and it’s really hard to fit all of this in,’ but at the end of the day it’s worth it because we are doing this for him.”
Aside from the pressing personal and emotional reasons, a confluence of events catalyzed the litigation against the state. For one, the couples saw in last July’s Windsor v. United States Supreme Court ruling (which struck down a key part of the 1996 Defense of Marriage Act) an opening for justice.
The far-reaching opinion, which affords same-sex couples federal legal protections, set off a swarm of marriage equality cases challenging state anti-gay laws across the country, including in Tennessee and Utah. To date, 17 states as well as Washington, D.C. have legalized gay marriage, and plaintiffs from 21 states are currently challenging their state laws.
“The Windsor decision gave us hope and belief that we will prevail,” said Phariss.
The DOMA ruling merged with the generous offer by Dimetman’s former employer, local law firm Akin Gump Strauss Hauer & Feld, which took on the case pro-bono. Equipped with expansive resources and legal titans like the former U.S. assistant solicitor general, the firm’s San Antonio branch is ready for the challenge.
“My clients are simply asking to be treated the same as [the majority] of citizens of the U.S. who are afforded the opportunity to be married to the person they love and receive benefits that flow that from relationship,” said attorney Neel Lane from his San Antonio office.
The stars seemed to align for both couples, and the impetus for a full-fledged suit arose.
“Everything just came together at the right minute; it was the perfect formula all at once, so we said, ‘OK, let’s do it’, but at the same time, we know it’s not going to happen overnight,” said Holmes.
Indeed, the couples are fighting within a notably hostile political and legal climate for LGBT rights. It is, after all, home to a place where state sodomy laws remain on the books, despite being ruled unconstitutional in the landmark 2003 U.S. Supreme Court case Lawrence v Texas.
Texas has time and again re-codified laws against same sex marriage, starting in 1997, when the Texas Legislature enacted the first ban. It then bolstered the prohibition with its own version DOMA in 2003, further outlawing same-sex marriage by barring couples married out of state from recognition in Texas. The code mandates the state cannot honor “a public act, record or judicial proceeding that creates, recognizes or validates a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction,” as well as any right to claim legal protection, benefit or responsibility.
But even after twice codifying the anti-LGBT legislative edict, lawmakers, arguing on the basis of maintaining traditional values—not to mention a host of other goals in which sexual orientation plays no proven part, like combating poverty, contributing to healthy environments and preventing pedophilia and promiscuity—still weren’t satisfied. In 2005, the Legislature proposed a constitutional amendment that would relegate legal marriage to “consist only of the union of one man and one woman.” Placed on a ballot for voters, the measure passed with roughly 76 percent of the vote.
However, attitudes about same-sex marriage appear to be steadily evolving. According to a 2013 poll commissioned by state LGBT rights lobbying and advocacy group Equality Texas, the largest increase in support for the gay community was found among voters’ growing approval of same-sex marriage. By a 47.9 percent to 47.5 percent margin—a minor plurality—Texans support allowing lesbian and gays the freedom to marry, a more than five percent increase since the September 2010 poll. Similarly, while a June 2009 Texas Tribune/University of Texas poll showed 29 percent of people polled supported gay marriage, by June 2013 that figure rose some 10 percentage points, with 39 percent of those polled embracing same-sex marriage.
“Political opponents of marriage equality always want to point back to the ballot measure in 2005, and they would like Texans to believe that’s still where the public is,” said Chuck Smith, executive director of Equality Texas, from his Austin office. “But the reality is that feelings about the freedom to marry have changed over the last 10 years or so and those changes have been happening in Texas as well.”
He continued, “The polls show more and more that Texans know someone that is affected by these restrictions and know people that are in love and want to be able to commit to each other through the institution of marriage.”
The Equality Texas survey of Texas voters also found 65.7 percent of respondents support extending domestic partnership benefits to government or public university employees (a rise of 3.4 percent) and 52 percent of Texans support recognizing the same-sex couples married out-of-state (a 3.6 percent upturn of support). The most recent prominent same-sex marriage of Texans came courtesy of Houston Mayor Annise Parker, the first openly gay mayor of a major U.S. city, who wed her partner of 23 years in Palm Springs, Calif., in mid-January. The marriage almost instantly drew criticism from state GOP leaders, none louder than Lieutenant Governor hopeful, current state senator and conservative radio host Dan Patrick, who accused her of trying to “turn Texas into California.” Parker glibly replied to her haters. “I took four days off,” Parker told KHOU 11 News. “I had to leave my home state and make a little wedge of time to marry the woman I love. They can get over it.”
Riding the momentum of the national LGBT rights landscape, Equality Texas has near-future plans to launch a storytelling-based campaign, “Why Marriage Matters,” with the aim of detailing the real-life accounts of committed LGBT couples who want to see their state legalize same-gender marriage.
Smith says the campaign is meant to further increase the level of public support when it comes to marriage in Texas and stress the fact gay and lesbian couples “want and need to have the same rights and access to marriage in order to build and protect their families.” Those equal protections include, but aren’t limited to, spouse-based medical care and tax and social security benefits.
In addition to an evident decline in public resistance to gay marriage, recent favorable rulings in conservative states like Oklahoma and Utah have infused optimism among gay rights advocates. A federal district court judge struck down the ban in Utah deeming it unconstitutional, allowing 1,400 gay couples to wed. However, the state quickly sought and was granted a stoppage of the ruling from the U.S. Supreme Court. Today, the law remains in limbo, pending the decision of an appeals court. A similar ruling in Oklahoma found the ban tantamount to “moral disapproval” and exclusionary to one class of citizens. Likewise, the ruling was halted and awaits an appeal decision.
Nevertheless, the rulings signal a shift in the judicial sphere when it comes to marriage equality, albeit incremental.
“We’re seeing even in red states, like Utah and Oklahoma, that these judges are in fact ruling that laws predicated on animosity toward gay people violate the equal protection clause of the U.S. Constitution. I think it’s entirely possible and I am hopeful a similar ruling may be found in [the De Leon] case,” said Smith.
Lane described the Utah and Oklahoma cases as “very analogous” to what could happen in Texas, since the suits similarly took on a state constitutional amendment. The case he’s trying, Neel said, is “unprecedented” in Texas—while other suits have been filed, this is the first to challenge the same-sex marriage ban on the grounds of a violation to the equal protection law. Lane and the plaintiffs will ask for a preliminary injunction from U.S. District Judge Orlando Garcia in February; from there it can move in a myriad of directions.
Succeeded by his sister-in-law state Sen. Leticia Van de Putte, Garcia served as a San Antonio Democrat in the Texas House from 1983-1991. A Clinton appointee, he generated censure from GOP circles for siding with the Department of Justice in the Texas redistricting case and against Attorney General Greg Abbott and Governor Rick Perry, both named defendants in the marriage equality suit. His latest move in the case doesn’t bode well for Abbott, either. Garcia denied the AG’s request to transfer the suit to an Austin court led by a George H.W. Bush appointee (where two other marriage equality cases are being tried). He struck the proposal down, calling it neither “appropriate or necessary.” While the cases share a common issue, they “differ in important respects,” Garcia wrote.
“We are committed to pursuing the case, all the way up to the U.S. Supreme Court if necessary,” said Lane.
“If we don’t have to, we’ll open the Champagne, pop our corks and celebrate; that’s fine by us,” he added. “But if so, we are committed to going all the way.”
Optimistic about their victory, the couples hope they will be able to stay in Texas and have their marriages validated. However, an unsuccessful case may force them to move elsewhere—a notion neither party wishes to entertain.
Texas—and San Antonio—holds major significance to both couples. They both met in SA, they both lived and dated each other here and now the case they are championing is being challenged in the Alamo City.
Phariss and Holmes gush about their adoration for San Antonio, visiting close friends any chance they can. “We love San Antonio–it’s a great city and very welcoming,” said Phariss, who participated in several organizations during his 17 years here. (He was recently asked to jump back on the board of one of them—the San Antonio Sports Endowment, TeamSA.)
As for Dimetman and her partner— leaving the state is far from their ideal vision.
“That would be a very hard decision, we are both very, very tied to Texas,” said Dimetman. The entrepreneur and marketing consultant was born and raised in San Antonio and attended Keystone through elementary and high school. After grad school on the East Coast, she enrolled at the University of Texas—Austin Law School. While she and her partner remain there, Dimetman’s entire family resides in SA.
“I honestly don’t know what we would decide, I don’t even want to think about it,” she said.
De Leon can attest to even deeper roots in Texas. Her family’s lineage in the state dates back to the 1600s. In fact, De Leon says the Tejano monument statue on the grounds of the Texas Capitol that depicts one of the pioneer explorers of the state, General Alonzo De Leon, is a tribute to her ancestry.
“We were already forced to marry out of state, the law forced Nicole to adopt our child—I would have to be forced to leave my home,” said De Leon, of a Texas exodus.
Dimetman shared her partner’s sentiments, saying, “One of the reasons we are doing this is to fight for our rights in Texas. We are determined to stay here, be Texans and be treated like every other Texas family.”
For military veterans De Leon (10 years in service) and Holmes (23 years, he retired just a week shy of the full repeal of the military’s “don’t ask don’t tell policy”) feeling unaccepted by their state leaders carries a particularly painful sting.
Texas governor Rick Perry has cultivated an unwelcoming environment for the gay community, including gay veterans. For instance, in 2012, Perry televised his opposition to gay rights in a presidential campaign ad bashing the repeal of DADT. “You know there is something wrong in this country when gays can serve openly in the military but our kids can’t openly celebrate Christmas or pray in school,” Perry said in the ad.
In 2005, Perry ceremonially signed the constitutional amendment further outlawing same-sex marriage at Calvary Christian Academy in Fort Worth. When a reporter asked Perry what he would say to gay and lesbian military veterans who wished to marry and live in Texas, he responded, “Texas has made a decision on marriage, and if there’s a state with more lenient views than Texas, then maybe that’s where they should live.”
“He’s right in the sense that some people in Texas have made the decision, but not all people have,” said Holmes in reference to Perry’s self-deportation comments. “A few people make the choice and everyone else is just living with it.”
“What he says defines the individual, not the state,” Holmes continued. “I love Texas. I’ve been to other states and countries and this is the place where I want to live. I don’t see why I have to go somewhere else.”
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