Editor’s Note: In a 5-4 ruling on June 26, 2015, the U.S. Supreme Court declared that the Constitution guarantees the right for same-sex couples to marry across the country. Here is the story of two women who fought for that historic decision in Texas—and helped to make it a reality.
The epicenter of the culture wars in Texas at this particular moment is an otherwise unremarkable two-story tan-brick house with a tidy yard in the farthest reaches of the South Austin suburbs. It is home to Cleopatra De Leon and Nicole Dimetman, two women engaged in a historic fight over warring notions of love, marriage, and what it means to be a family—though they are hardly the wild-eyed radicals their opponents imagine them to be. When I visited one evening last fall, both greeted me at the door in a soundless pantomime of welcome. They had warned me beforehand that I would be arriving right around their son’s bedtime, and now each woman pressed a finger to her mouth, signaling me to be quiet as I stepped inside. Both dark-haired and pretty, they wore jeans, slouchy sweaters, and the content but weary expressions of working mothers at the end of a long day.
I followed them as they tiptoed across the foyer and past the kitchen, where the refrigerator was bedecked with rainbow-hued finger paintings and snapshots of a two-year-old boy with a crinkly-eyed smile. A grainy printout from a recent sonogram showed the tiny silhouette of the baby girl whom Nicole, then four months pregnant, was carrying. Only when we reached the living room, where toys lay scattered across the glass coffee table, spilling onto the beige wall-to-wall carpet below, did Cleo and Nicole break the silence. In stage whispers, they alternately spoke over each other and completed each other’s sentences, the way old couples often do:
“We just put our son down, and his bedroom is right above the front door, so—”
“—we have to be quiet—”
“—because he had a tough day and—”
“—he was fussy at dinner—”
“—and he kept wanting us to read him stories before bed, and—”
“—he wouldn’t settle down—”
Suddenly, the baby monitor crackled with the boy’s cries. Both women froze in mid-sentence, listening with the fierce concentration of parents assessing whether the rest of their evening will be spent in the company of adults or with an inconsolable toddler. As we stood waiting, Nicole ran her hand across her belly; she was just beginning to show.
We heard the boy whimper, his displeasure amplified by the monitor, then fall silent. Two cats studied us from the couch as we listened to see if he would go back to sleep; the only sound came from the rescue mutt, whose collar jangled as he sniffed my boots. After another minute passed with no further cries, the mood brightened. Cleo turned to me and, in a hushed voice, asked, “Would you like some hot cocoa?”
The domesticity of the moment was an almost comical backdrop for two women who have been accused of trying to undermine the sanctity of the Texas family. Along with Victor Holmes and Mark Phariss, two Plano men who have been in a committed relationship for eighteen years, Cleo and Nicole filed suit against the State of Texas in the fall of 2013, charging that its same-sex marriage ban is unconstitutional. Their lawsuit, De Leon v. Perry, advanced all the way to the U.S. Court of Appeals for the Fifth Circuit—the last stop before the Supreme Court—where oral arguments were heard this January. One week later, the Supreme Court raised the stakes when it announced that it would hear same-sex marriage cases from four other states in the spring. The Supreme Court will likely rule in June whether gays and lesbians across the nation have the constitutional right to marry, but the Fifth Circuit could hand down a decision sooner. Depending on what these courts decide, Texas may be forced—over the objections of the governor, the attorney general, and much of the Legislature—to join the 37 states in which same-sex marriage is now legal. If that happens, Texas will undergo the single most transformative cultural shift in recent memory.
Opponents of De Leon v. Perry have suggested that the lawsuit, if successful, will not only degrade the institution of marriage but bring about the destruction of Texas families. Last August, 11 state senators and 52 state representatives—roughly one third of the Legislature—signed an amicus brief backing the state’s position in the case, arguing that overturning Texas’s same-sex marriage ban could open the door to the legalization of bigamy, pedophilia, and incest. (Among the legislators endorsing the brief were Dan Patrick, now lieutenant governor, and Ken Paxton, now attorney general.) The Liberty Counsel, a Christian legal aid group, made a similarly dire forecast in a separate amicus brief it filed in solidarity with the attorney general’s office. “The future of civilized society depends on protecting permanence and exclusivity in family structure,” it stated, asserting that promiscuity is endemic to gay unions. “There can be no question that memorialization of marriage as the union of one man and one woman fortifies the foundation of Texas law and the health, safety, and well-being of its citizens.”
Yet the lawsuit coincides with a fundamental change taking place in the country at large. Less than two years after the Supreme Court’s landmark decision in United States v. Windsor—which gutted the Defense of Marriage Act, the 1996 law that defined marriage as the union between one man and one woman—11 states have legalized same-sex marriage either by voter referendum or legislative action, and judicial rulings have brought it to 26 more states. Texas, which passed a constitutional ban a decade ago with 76 percent of the vote, is one of the last, stubborn holdouts, though recent polls suggest that opposition around the state is also declining. Last fall, a University of Texas/Texas Tribune poll of registered voters found that 47 percent of respondents said they did not believe gays and lesbians should be allowed to marry, 42 percent supported same-sex marriage, and 11 percent were undecided. (A Texas Tech poll using a smaller sample found the same percentage opposing it but support among 48 percent.) “At the same time that people across the country have been on a journey with regard to their perceptions of gays and lesbians and their feelings about gays and lesbians getting married, millions of Texans have been on that very same journey,” Chuck Smith, the executive director of the LGBT-rights group Equality Texas, told me.
State lawmakers, meanwhile, have been slower to come around. First under Greg Abbott and now under Paxton, the attorney general’s office has vigorously defended the state’s ban, arguing that marriage between a man and a woman must be preserved because it is a long-standing tradition that forms the cornerstone of society as we know it; furthermore, marriage is an institution for the states, not the federal courts, to define. Most recently, the attorney general’s office has also advocated a third, more provocative, argument: that banning same-sex marriage benefits the public good by helping to promote “responsible procreation.” According to this line of reasoning, Texas has a vested interest in encouraging its heterosexual citizens to marry so they will raise their children in a stable environment, rather than out of wedlock. Consequently, the state has argued, there is no incentive in allowing homosexuals to wed, because their sexual activity cannot produce children. Barring them from marrying, the attorney general’s office has insisted, is in the best interest of Texas children.
But it is children—their children—that prompted Cleo and Nicole to file a lawsuit in the first place. Their suit argues that “responsible procreation” ignores the fact that gays and lesbians have children too, through adoption or because one partner is a biological parent. (Though legislators have tried repeatedly to bar gays and lesbians from adopting, nearly 19,000 children in Texas are being raised by same-sex couples, with San Antonio boasting the highest percentage of such families in the nation.) Because of the state’s ban, Cleo and Nicole lack many basic rights as parents. In most parts of Texas, an individual can be fired for being gay, which puts same-sex couples’ ability to provide for their children at risk; should one partner die, the other would be left to raise their children without the help of Social Security benefits. When Nicole gives birth to their daughter in March, only she—not Cleo—will be listed on the girl’s birth certificate. (Heterosexual married couples who use an anonymous sperm donor, as Cleo and Nicole did, face no such penalty.) This means that should the worst happen—should Nicole have serious complications during labor that leave her incapacitated, or should she die during childbirth—Cleo has no legal right to their child.
For these reasons, Cleo and Nicole told me when we settled in to talk, steaming mugs of cocoa in hand, they felt they had no choice but to sue the state. “People on the other side of this debate say we should slow down and leave this up to the Legislature, and we should try to change hearts and minds in the meantime, however long that takes,” Nicole told me. “What they don’t understand is the urgency we feel. This isn’t an abstract argument; these are real issues affecting real people, right now. All we really want is to live the very best lives we can.”