The state of Texas has officially given notice that it is appealing a San Antonio judge’s ruling that completely struck down its ban on same sex marriage.
“Defendants … Rick Perry, Greg Abbott, and David Lakey … hereby appeal to the United States Court of Appeals for the Fifth Circuit from the Order Granting Plaintiffs’ Motion for Preliminary Injunction, signed and entered in this action on February 26, 2014 ,” said the state’s notice, filed in federal court in San Antonio on Thursday.
I agree with Judge Garcia when he says “state-imposed inequality can find no refuge in our United States Constitution.” There is no question that marriage is a right that should be afforded to all consenting adults regardless of race. In my view, the same right should be afforded regardless of sexual orientation, and I am not convinced Texas should commit substantial time and money to appeal a ruling that is likely to remain unchanged when considered by the U.S. Supreme Court.
Needless to say, none of the Republican candidates agreed with that.
Texas Monthly, writing before Abbott’s promise to appeal, examines the timing of the process.
[Judge Orlando] Garcia’s ruling falls in line with similar district court decisions issued recently in Oklahoma, Virginia, and Utah—making it increasingly likely that the U.S. Supreme Court will eventually have to settle the matter, possibly as soon as the 2014-15 session.
During a conference call [Wednesday] afternoon, Barry Chasnoff, one of the attorneys for the plaintiffs, said that while he hoped Abbott would choose not to appeal the decision and allow it to stand—as attorney generals in states like New Jersey have done—he nonetheless expected that in “a political year” Abbott would issue an appeal.
Garcia’s injunction will place the case on a fast track to the appeals courts, which is also where the Utah and Oklahoma cases are headed. But while Oklahoma’s and Utah’s cases are being appealed to the traditionally moderate Tenth Circuit Court of Appeals, the Texas appeal will be heard by the traditionally conservative Fifth Circuit, in New Orleans.
According to Kenneth Upton, a Dallas-based senior lawyer for the gay legal advocacy group Lambda Legal, the Texas appeal could be decided around the same time as the Oklahoma, Virginia, and Utah appeals. So although it’s still considered unlikely, there’s a chance that the Texas case could be the one the Supreme Court hears first—and could end up bringing same-sex marriage to all fifty states.
That would make it a bookend to the Lawrence v. Texas case from 2003. We sure have come a long way. I recommend you also read this TM feature story from the February issue, about plaintiffs Mark Phariss and Vic Holmes:
Phariss and Holmes, who filed suit with another same-sex couple in October and whose case will be heard this month by the U.S. District Court in San Antonio, are unlikely catalysts for social change: until recently, Phariss wasn’t entirely out of the closet, and both men were deeply hesitant about being part of the case. Holmes, who is a 43-year-old physician’s assistant in Fort Worth and former Air Force officer, feared that exposing themselves so publicly might make them targets of antigay violence. Phariss, who is 54 and an attorney, worried that the attendant publicity would alienate colleagues and clients, many of whom didn’t know about his sexuality. He even asked the legal team handling the suit if it could withhold a press release from the Dallas Morning News, since that’s the newspaper that everyone he works with reads.
“The day it was filed, I literally got physically sick,” recalled Phariss. “Leading up to that, we definitely had moments where we looked at each other and asked, ‘Have we lost our minds?’ It’s no accident that my name is the last of the plaintiffs listed.”
A decade after Lawrence v. Texas —the landmark 2003 Supreme Court decision that declared state laws forbidding homosexual activity to be unconstitutional—Texas seems to have found two more reluctant gay-equality activists. Like John Geddes Lawrence, who was closeted at the time of his 1998 arrest in Houston for consensual sex with another man in his own house, Phariss and Holmes found themselves drawn into the battle for marriage equality almost by happenstance. At every step of the way, they’ve had to keep convincing themselves this is the right thing to do. “The truth of the matter is I had some reticence about meeting with you,” Phariss told me.
The lawsuit originated with co-plaintiffs Nicole Dimetman and Cleopatra De Leon, who live in Austin but married in Massachusetts in 2009. In the aftermath of last summer’s Windsor decision, the women decided to sue Texas to recognize their marriage. One of their main motivations, they said, was to cement parental rights regarding their son, whom De Leon gave birth to in 2012 and whom Dimetman has since adopted. “We want to be able to tell our kids that we are married,” De Leon told me.
In August, Dimetman, an attorney who previously worked for the San Antonio office of Akin Gump Strauss Hauer & Feld (which had filed an amicus brief in the Windsor case), asked her former employers if they would be willing to represent the couple. After Akin Gump agreed to take on the case, the firm’s attorneys began reaching out to other gay couples, asking them to join as co-plaintiffs. They believed that a diverse group of plaintiffs—male and female, unmarried and already married in another state—would give the lawsuit its best chance. One of the first people lawyer Frank Stenger-Castro talked to was Phariss, whom he knew through legal circles. Phariss and Holmes eventually agreed to join the suit and went to the Bexar County Clerk’s office, where they requested and were denied a marriage license.
Why would Phariss and Holmes take on such a public role, given Phariss’s semi-closetedness and their concerns for their safety? They say that, in good conscience, they couldn’t not do it.
“There’s this phenomenon where someone is in trouble and needs an ambulance, and everybody says, ‘Call 911,’ and everybody assumes someone else is going to do it, and nobody winds up doing it,” said Holmes. “I didn’t see anybody else doing this, so I thought, ‘Okay, I’ll be the one who makes the call.’ ”
They’re happy they did make that call, as expressed by their statement after the ruling.
“We are extremely happy — happy beyond words — with Judge Garcia’s decision,” Phariss and Holmes said Wednesday in a written statement. “Today, Judge Garcia affirmed that the Equal Protection Clause applies to all Texans. We are delighted by that decision, and we expect that, if appealed, it will be upheld.”
In the same joint statement, Dimetman and De Leon described the decision as “a great step towards justice for our family.”
“Ultimately, the repeal of Texas’ ban will mean that our son will never know how this denial of equal protections demeaned our family and belittled his parents’ relationship,” they said in a written statement. “We look forward to the day when, surrounded by friends and family, we can renew our vows in our home state of Texas.”
Not everyone is happy, of course – this Chron story has a couple of quotes from usual suspects expressing their unhappiness.
Gov. Rick Perry said the ruling was yet another attempt by the federal government to tell Texans how to live their lives.
“Texans spoke loud and clear by overwhelmingly voting to define marriage as a union between a man and a woman in our constitution, and it is not the role of the federal government to overturn the will of our citizens,” he said. “We will continue to fight for the rights of Texans to self-determine the laws of our state.”
Texas Agriculture Commissioner Todd Staples, who authored the amendment to the state constitution that banned same-sex marriage when he was a state senator in 2005 issued a short, but to-the-point Tweet on the ruling:
“Having carried the constitutional amendment defining marriage between 1 man & 1 woman, I will change my definition of marriage when God does.”
Perry and Staples and Dan Patrick and all the rest of them deserve all the unhappiness they get over this. Couldn’t happen to a better bunch of people.
By the way, there’s a second lawsuit that has yet to be heard.
Another gay marriage lawsuit will be heard in Austin, possibly as early as June. Federal Judge Sam Sparks will hear an argument made by a gay couple that the state ban on same-sex marriage is unconstitutional because it discriminates against them based on their gender. The argument is slightly different from the one made before Garcia and could trigger another round of appeals.
You may recall that Abbott tried to get these two cases consolidated and moved to Judge Sparks’ court, but both Judges Garcia and Sparks rejected those motions. In preliminary hearings, Judge Sparks had expressed some skepticism about the plaintiffs’ claims in the lawsuit that he will hear, which as noted is based on different claims than the one Judge Garcia just ruled on. It will be interesting to see what happens in that case.
Another lawsuit likely to be affected by this is the one that was filed by Jared Woodfill against the city of Houston over Mayor Parker’s order to make spousal benefits available to legally married same sex couples as well. Lone Star Q discusses that.
Ken Upton, a senior staff attorney at Lambda Legal who’s representing the gay Houston employees, told Lone Star Q on Thursday that U.S. District Judge Orlando Garcia’s ruling striking down the amendment will bolster the argument for same-sex benefits in Houston.
“It should be persuasive that the City and the employees have a substantial likelihood of success on the merits given that another federal judge in a sister district has found the law to violate both the liberty and equality guarantees of the 14th amendment,” Upton said.
You’d sure think so, wouldn’t you? That case is now in federal court, being heard by Judge Lee Rosenthal. There should be another hearing for it soon, unless the plaintiffs decide to drop it. Take the hint, Jared.
Last and least, Louie Gohmert is still an idiot. Just thought you’d want to know that.