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A federal judge in San Antonio is expected to decide whether to issue a temporary injunction on Texas’ same-sex marriage ban.AP Photo/Heather Leiphart
Cleopatra wants to be married, in Texas, to another woman. She already said “I do” in Massachusetts, where same-sex marriage is legal, but Texas law won’t recognize her marriage to anyone but a Marc Antony type.
Cleopatra de Leon and her spouse, Nicole Dimetman, and another couple — Victor Holmes and Mark Phariss, who were denied a marriage license in Texas last year — have taken their challenge to the state’s ban on same-sex marriage to federal court. A judge in San Antonio is expected to decide Wednesday whether to grant a temporary injunction that would block the state from enforcing the ban while the case is litigated.
At the same time, four publicly out lesbians known as the San Antonio Four were recently released from prison — 19 years after they were charged with molesting the two young nieces of one of the defendants. They were convicted and sentenced in 1998. Attorneys for the women used a new law to challenge the conviction on the basis that the testimony provided by a pediatrician that was critical in the case was unreliable and outdated.
The two cases — in the same city, nearly two decades apart — both hinge on challenging scientific claims. While the release of the San Antonio Four has become a symbol of advances in the gay rights movement, the same-sex marriage debate echoes a more hostile past toward gays and lesbians. At their roots, both cases turn on theanxieties, prejudices and persistent notions about the suspected adverse effect of gays and lesbians on children.
“That stereotype clearly influenced the San Antonio Four case and will be repeated in the state of Texas in its defense of its (same-sex) marriage ban,” said Clifford Rosky, a law professor at the University of Utah. But “they are not going to say a threat to children.”
In today’s parlance, he said, arguments are framed in terms of what is the “optimal environment” for children.
Attorneys for the plaintiffs in San Antonio submitted dozens of pages, including court opinion, expert testimony, book excerpts and academic articles plus position statements from associations such as the Child Welfare League of America, the American Academy of Pediatricians and the American Psychological Association, that refute any claims of adverse effects in well-being or development experienced by children raised by same-sex parents.
Among the dozens of supporting documents, the plaintiffs’ attorneys included a 2004 statement by the APA that they sought to discount. The APA’s 10-year-old statement outlined “common fears” about the influence of gay and lesbian parents on children, including susceptibility to mental breakdown, sexual-identity issues and a fear that “children living with gay and lesbian parents will be more likely to be sexually abused by their partner or by the partner’s friend or acquaintance.” Social science research, according to the plaintiffs’ attorneys’ statement, has failed to confirm any of these concerns.
Texas Attorney General Greg Abbott, in defending the voter-approved ban, described the suggestion of anti-gay bias as “ugly.”
In written arguments, the state cites its interest in promoting “responsible procreation and child rearing.” Similar arguments are being used in other states where same sex marriage cases are pending.
The state punctuated its argument by saying changes to marriage should be postponed “until such time as there is unanimous scientific evidence, or popular consensus, or both, that such changes can safely be made.”
The San Antonio Four
Although they are nearly 20 years apart, the cases of same-sex marriage and the San Antonio Four are tied to the confluence of science and beliefs, as it has to do with gays and lesbians.
“For a long time there was a junk science that people thought was real and they discovered was not, but ideology continues with it,” said Jennifer Pizer, law and policy project director for the advocacy group Lambda Legal. “We're not moving as fast as some people think, and we may fool ourselves to think those attitudes don’t exist.”
In the summer of 1994 Elizabeth Ramirez’ two nieces stayed with her and her roommates for a week. Two months later the girls accused their aunt, 20-year-old Ramirez, who was pregnant at the time, her roommate Kristie Mayhugh, 21, and two other women, Cassandra Rivera and Anna Vasquez, both 19, of sexually assaulting them with small objects. There were reports that the women lounged around topless, smoking marijuana. At times the accusations included claims that Ramirez had placed a gun to one girl’s head during the episodes.
In his opening statement, prosecutor Philip Kazen said, “We are going to ask you to believe a 9-year-old little girl who was sacrificed at the altar of lust.”
The girls’ testimony was riddled with inconsistencies, which were justified as the result of young minds attempting to explain traumatic and complex events. But the testimony of a medical expert, Dr. Nancy Kellogg, testified that an examination that showed a slight scar on the hymen was consistent with signs of abuse. It was the hard evidence that proved critical.
Kazen, now a state judge, later told jurors, “Folks, a lot has been made in this case about the fact the defendant is a lesbian. Who cares? Do not go back and convict her because she’s a lesbian. It’s only important in that sense that that activity is generally consistent with the activity alleged in the indictment, and that’s all.”
The four women were convicted of aggravated sexual assault and indecency with a child. They were sentenced to prison terms ranging from 15 to 37 and a half years.
“The only reason law enforcement took them seriously was because the four women were gay,” said attorney Mike Ware, who revived their case with support from the nonprofit Innocence Project of Texas.
Legal process stalled
Over the years, the landscape for gay rights has changed, but the mingling of suspected deviance and children persisted.
In 2003, Texas’ anti-sodomy law went before the U.S. Supreme Court. Chief Justice William Rehnquist questioned whether “states also could prefer heterosexuals to homosexuals to teach kindergarten” if the Texas law was struck down. The high court ultimately ruled the law unconstitutional, paving the way for the same-sex marriage movement. A few months later the Massachusetts Supreme Court in a landmark decision ruled that same-sex couples have a right to marry.
Despite the high court’s ruling, Texas’ sodomy law, known as the “homosexual conduct” law — which makes “deviate sexual intercourse with another individual of the same sex” a crime — remains on the books, and every attempt to repeal it has failed. Texas is among eight states in which sex-education class material instructs that homosexuality is “not a lifestyle acceptable to the general public and is a criminal offense.”
Last June, the U.S. Supreme Court cited the welfare of children when it struck down the federal Defense of Marriage Act, which denied federal government benefits to same-sex couples. The court in its majority opinion said the law relegated same-sex marriage to a second-class status that “humiliates tens of thousands of children now being raised by same-sex couples.” However, the high court did not address whether individual states must recognize same-sex marriages performed in other states. With same-sex marriage cases before the courts, the issue will likely return to the U.S. Supreme Court.
‘Junk science’ shot down
Meanwhile, the case of the San Antonio Four languished for a decade until a Canadian professor named Darrell Otto took their case to the National Center for Reason and Justice, which began advocating for them. Last year, attorney Ware filed petitions for their release, saying one of the child victims had later recanted, saying they had been coached by their father, whose romantic intentions had been spurned by Ramirez.
Ware cited new science that disproved Kellogg’s medical expert testimony. She has since recanted. However, none of these factors would have freed the San Antonio Four without the state’s new “junk science” law, which opened the door for prisoners to seek release or a new trial if the science that was critical to their convictions has since been refuted or disproved.
Other grounds for release included statements by the prosecutor that “confused sexual orientation with promiscuity, focusing on the sexual relationships among the adult women, and suggesting they all had sex with each other.”
On Nov. 18, after nearly two decades in prison, Ramirez, Rivera and Mayhugh were released. (The fourth, Vasquez, had been released earlier on strict parole.) The district attorney has said she will not retry the case. Nine days later, attorneys filed their lawsuit challenging the same-sex marriage ban.
And the San Antonio Four remain in legal limbo. They may be eligible for state funds paid to the wrongfully imprisoned, but such a move requires a judge to vacate their convictions or, as Ware described it, award them “absolute vindication.”