Marriage equality supporters wave LGBT rainbow flags at Main Plaza in celebration of the Supreme Court's decision that found Prop 8/DOMA unconstitutional in June 2013. Photo by Iris Dimmick.
Marriage equality supporters wave LGBT rainbow flags at Main Plaza. Credit: Iris Dimmick / San Antonio Report

Update 2/26/2014 5:30 p.m. – Today the much anticipated ruling from Judge Orlando Garcia came in an order granting the preliminary injunction for the two couples in the case. In the order, Judge Garcia detailed out many reasons why he felt the plaintiffs would prevail in their case, one of the requirements of a preliminary injunction.

“Because Plaintiffs have shown that Texas’ same-sex marriage ban violates their equal protection rights,the law is unconstitutional without the need to reach any other constitutional challenge. Accordingly, Plaintiffs are likely to succeed on the merits of their case,” said Garcia in the 48-page ruling with regards to the issue of tradition.

Immediately upon issuing the ruling, Garcia issued  a stay of the ruling, pending appeal with the 5th Circuit Court of Appeals, expected sometime later this year.

Shortly after the ruling, Texas Attorney General Greg Abbott issued a statement saying his office would begin the process of appealing the ruling. “The U.S. Supreme Court has ruled over and over again that States have the authority to define and regulate marriage,” said Abbott in the statement.

Original 2/15/2014 2:16 p.m. – On Wednesday, when Barry Chasnoff of Akin Gump stood to address U.S. District Judge Orlando Garcia about same-sex marriage, the state of Texas joined the growing list of federal cases, all eventually headed to the U.S. Supreme Court.

Chasnoff and his legal team represent two same-sex couples, Mark Phariss and Victor Holmes of Plano, and Nicole Dimetman and Cleopatra De Leon of Austin, who are challenging Texas’ ban on same-sex marriage.

While the hearing was the first stop of the journey, everyone, including Judge Garcia, expects this case will be appealed to the 5th U.S. Circuit Court of Appeals in New Orleans.

Barry Chasnoff, representing two couples challenging Texas' ban on same-sex marriage, address the media after a hearing. Photo by Randy Bear.
Barry Chasnoff, representing two couples challenging Texas’ ban on same-sex marriage, addresses the media after a hearing. Photo by Randy Bear.

The hearing was in response to a preliminary injunction request barring Texas from enforcing the ban on same-sex marriage, enacted by a constitutional amendment passed by 76 percent of the voters in 2005.

Texas is one of 29 states that have passed amendments banning such marriages, most occurring during the 2004 presidential election after the Massachusetts Supreme Court legalized same-sex marriage in May, 2004. Since then, however, 17 states have  legalized same-sex unions, either by popular vote or legislative action.

Looking at the map of the legal landscape of same-sex marriage in the U.S. below, there are few states left where any course of action other than a federal lawsuit or a repeal of a constitutional amendment will grant LGBT individuals the right to marry. After the Supreme Court overturned the Defense of Marriage Act (DOMA) last June, couples across the country began mounting legal challenges to their own states’ marriage bans.

In the case of Windsor v. United States, the Court ruled that the federal ban violated the Fifth Amendment and deprived the liberty of a person. However, the decision left intact state bans on same-sex marriage, limiting its scope only to the federal law barring LGBT couples from federal benefits or rights such as spousal benefits for federal employees or joint filing of federal income taxes.

However, Justice Antonin Scalia, in his dissenting remarks, telegraphed the inevitable challenges of those bans at the state level. “In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by ‘bare. . . desire to harm’ couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status,” Scalia said.

In many of the challenges and decisions that have developed since the Windsor decision, that remark by Scalia has been restated time and time again, including justification by US District Judge Robert Shelby in his decision overturning Utah’s constitutional ban.

“The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law,” Shelby said.

During the hearing, Chasnoff and Neel Lane of the Akin Gump law firm argued for the plaintiffs’ fundamental right to marry. Garcia asked which rights and benefits were being denied. Lane cited several instances, including the right to hold community property, intestate survivorship, parental rights, health care decisions, and spousal and child support after divorce.

Citing Justice Hugo Black in Chambers v. Florida, Chasnoff said, “Under our constitutional system, courts stand, against any winds that blow, as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement.”

Arguing for the State of Texas was Assistant Texas Solicitor General Michael Murphy, who held that one of the crucial cases regarding same-sex marriage, Baker v. Nelson, was still a binding decision, allowing states the right to ban such unions “for want of a substantial federal question.” Murphy also followed the same reasoning of other states, such as Utah, that marriage is for the purpose of promoting procreation.

From Left: Vic Holmes, Mark Phariss, Cleopatra De Leon, Nicole Dimetman. Photo by Randy Bear.
(From left) Victor Holmes, Mark Phariss, Cleopatra De Leon and Nicole Dimetman – two couples challenging Texas’ ban on same-sex marriage. Photo by Randy Bear.

Murphy argued that in writing our nation’s Constitution, the framers were focused on traditional marriage and that sexual orientation is not a suspect or quasi-suspect class and, as such, not subject to discrimination. Murphy also told Judge Garcia that to overturn Texas’ ban on same-sex marriage was rewriting 150 years of Texas law, even though the ban was not put in place until 2006.

In the event Judge Garcia grants the preliminary injunction, he asked both sides, would they consent to an immediate stay of the decision, pending appeal. Both sides agreed, thus avoiding the potential for the kind of chaos that ensued in Utah after Judge Shelby’s decision.

With this case, one of three cases filed in federal district courts, Texas would start to join several other cases headed to the Supreme Court, most likely for the 2015 term. Almost all cases are still pending appeals within their circuits and none have petitioned the Supreme Court for certiorari. Legal observers expect some or all of the cases to be decided at  the appellate level this year, with the Court granting cert for hearing in 2015.

But that hasn’t slowed down the political rhetoric in this matter. On Wednesday, Sen. Wendy Davis, Democratic candidate for governor, called on Attorney General Greg Abbott, the Republican candidate for governor, to stop defending the state’s ban on same-sex marriage.

Texas State Senators Wendy Davis (right) and Leticia Van De Putte address the large crowd gathered for San Antonio's 2014 MLK Day celebration in Pittman-Sullivan Park. Photo by Iris Dimmick.
Texas State Senators Wendy Davis (right) and Leticia Van De Putte address the large crowd gathered for San Antonio’s 2014 MLK Day celebration. Photo by Iris Dimmick.

In her remarks on the matter, Davis said, “I think that what we see happening at the federal level in terms of constitutional interpretations on that provide some hope that it may be found unconstitutional.”

Following the hearing, Abbott’s office issued a statement supporting its defense of the ban: “The U.S. Supreme Court was clear that states have independent authority to establish their marriage laws. Texans adopted a constitutional amendment defining marriage. We will defend that amendment.”

Not wanting to leave the issue of same-sex marriage for the courts to decide, Sen. Ted Cruz (R-Texas) introduced a bill in Congress Thursday to amend U.S law “with regard to the definition of ‘marriage’ and ‘spouse’ for Federal purposes and to ensure respect for State regulation of marriage.”

“We should respect the states, and the definition of marriage should be left to democratically elected legislatures, not dictated from Washington. This bill will safeguard the ability of states to preserve traditional marriage for its residents,” said Cruz in a statement.

Regarding the state’s vote on the constitutional amendment, one of the plaintiffs, Mark Phariss, pointed out that in 1868, the nation took action to provide equal protection to all through the Fourteenth Amendment.

“The U.S. Constitution trumps anything that Texas does,” he said. “What stings is that they use a local action here to try to suggest that that would somehow or another trump our constitutional rights.”

*Featured/top photo: Marriage equality supporters wave LGBT rainbow flags at Main Plaza in celebration of the Supreme Court’s decision that found Prop 8/DOMA unconstitutional in June 2013. Photo by Iris Dimmick.

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Randy Bear is a 20-plus years San Antonio resident, transplanted from Little Rock to join the ranks of USAA in Information Technology. Over the last two decades, he’s been involved in a variety of civic...