All eyes will be on San Antonio on Wednesday.
Like most new parents, Nicole Dimetman and Cleopatra De Leon plan their days around their small child. Theirs is an ordinary family life, they say, but it is by no means easy.
Although married in 2009 in Massachusetts, where same-sex marriage is legal, they live in Texas, a state that doesn’t recognize their union. When De Leon delivered their child in 2012, Dimetman’s name wasn’t allowed on the birth certificate.
“There was that time period that I was the only parent,” De Leon said, a situation that never affects married heterosexual couples. “If something happened to me during his birth, he would have been considered an orphan.”
In October, the women, along with another couple, filed a federal lawsuit in San Antonio challenging the state’s ban on same-sex marriage. On Wednesday, they will go before U.S. District Judge Orlando Garcia, who will consider a preliminary injunction, a court order that would bar Texas from enforcing the ban while the suit continues to be litigated.
As the nation’s second-most populous state, “any decision that affects the marriage equality in Texas has national implications,” said San Antonio-based attorney Neel Lane, who represents the couples.
Indeed, the implications of the Texas cases could transform the national debate over gay marriage.
To prevail on the injunction request, the couples have to show they are likely to win when the full suit is litigated, and that they “are being harmed right now,” according to attorney Lane.
“Our belief is the arc of equal protection cases … points directly to recognizing that people have the right to marry regardless of gender,” Lane said. “Gays and lesbians are not afforded access to marriage and all the benefits from it. That is a denial of equal protection of the law. It is unequal when some people are not permitted to do what most others are permitted to do. And there’s no basis for denying them that right.”
See here and here for the background on the Texas case. As you can see from the latter link, I was rather pessimistic about this at the time that the hearing date was set. Then along came the rulings in Utah and Oklahoma and Ohio, and the decision by Virginia AG Marc Herring to not defend that state’s law, and just like that things look a whole lot different. There’s still a ton of decisions to be made, by the district court in Virginia and the appeals court for Utah and Oklahoma. Ohio, the site of a narrower decision concerning death benefits, is now on the clock with its own lawsuit (via Scalzi). And I’d still bet money on the Fifth Circuit Court of Appeals doing something hideous when they get the opportunity to weigh in. But it’s clear that the ground has shifted, and that the plaintiffs have by far the stronger argument. I don’t know what’s going to happen in court tomorrow, but it’s mind-boggling to think that we’re at this point barely eight years after that horrible, discriminatory amendment was passed. I truly hope we can start the countdown till its final day. Lone Star Q has more.
UPDATE: And late yesterday, the Democratic Attorney General of Nevada, with the agreement of the Republican Governor of Nevada, has announced the state will not defend its ban on same sex marriage against litigation there. Another nail in the coffin.