Bloomberg News

Texas Gay-Marriage Ban Held Illegal as Judge Delays Order

February 27, 2014

Same-Sex Marriage

Texas’s ban on same-sex marriage is unconstitutional, a federal judge said, ordering the law temporarily blocked while opponents pursue litigation seeking to overturn it. Photographer: Justin Sullivan/Getty Images

A federal judge said Texas’s ban on same-sex marriage is unconstitutional and should be blocked while opponents seek to overturn it, granting a victory to supporters of gay unions in the nation’s second-largest state.

U.S. District Judge Orlando Garcia left the ban in place, however, while the state appeals his preliminary injunction to the U.S. Court of Appeals in New Orleans.

“Everything has changed,” said Neel Lane, a lawyer for one of two couples who sued, in a telephone interview. “There will be no marriages yet, because the judge stayed his order. But a federal judge has found the Texas law unconstitutional and said it applies to all citizens who wish to marry.”

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The Texas state constitution was amended in 2005 to deny marriage licenses to same-sex couples and reject recognition of such unions performed in another state. Garcia agreed with the two plaintiff couples that last year’s U.S. Supreme Court ruling recognizing same-sex marriage for purposes of federal benefits undermines the state law. A trial has yet to be scheduled.

“Texas’ current marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason,” Garcia wrote in his opinion, filed yesterday in San Antonio federal court. A former state representative and member of the Texas Court of Appeals, Garcia, 61, was appointed to the U.S. court in 1994 by Democratic President Bill Clinton.

Rewriting Law

While acknowledging the state’s argument that an injunction would be “rewriting over 150 years of Texas law and radically altering the status quo,” Garcia said that “keeping tradition and history intact is not a justification for the infringement of an individual’s rights.”

Gay marriage is legal in 17 U.S. states and the District of Columbia. Federal appeals courts have been grappling with the issue following the Supreme Court ruling in June. The court overturned part of the federal Defense of Marriage Act without saying whether similar state laws should be struck down and, separately, left standing a lower court order ending a ban on same-sex marriage in California, the most populous U.S. state. California had 38.3 million residents as of last year, according to the U.S. Census Bureau. Texas had 26.4 million.

With the Texas ruling, the two U.S. states with the largest U.S. populations have ended same-sex marriage bans.

Similar lawsuits are pending in states including Pennsylvania, Florida and Michigan. Utah, Virginia and Oklahoma officials are appealing federal court orders in those states striking down prohibitions on gay marriage.

Meanwhile, attorneys general in Nevada and Oregon have stopped defending their states’ statutes in trial and appellate courts. Lawyers on all sides see the issue as eventually headed back to the U.S. Supreme Court.

‘State-Sanctioned Discrimination’

“Plaintiffs will continue to suffer state-sanctioned discrimination and the stigma that accompanies it until they too can enjoy the same rights that every heterosexual enjoys,” lawyers for one of the Texas couples said in court papers.

The lawsuit was filed by Cleopatra de Leon and Nicole Dimetman, who were married in Boston in 2009 and seek recognition of their union. The other plaintiffs, Victor Holmes and Mark Phariss, were denied a marriage license in Texas.

The state argued that Garcia shouldn’t overturn the ban because it was “overwhelmingly approved” by voters, Governor Rick Perry and Attorney General Greg Abbott, both Republicans, said in a filing last year opposing the injunction.

‘Traditional Authority’

Texas claimed that the Supreme Court ruling stopped short of overturning “the traditional authority states have exercised since the founding to define and regulate marriage.”

“The U.S. Supreme Court has ruled over and over again that states have the authority to define and regulate marriage,” Abbott, a candidate for governor, said in an e-mailed statement yesterday. If the U.S. Court of Appeals “honors those precedents, then today’s decision should be overturned.”

The Texas Democratic Party hailed the court ruling as “historic.”

“Everyone should have the right to be with the person they love and we look forward to the day in Texas when everyone can marry who they love,” Gilberto Hinojosa, the Texas Democratic Party chairman, said yesterday in an e-mailed statement. “Today, all Texans can celebrate that we are one step closer to justice and equality for all.”

Brian Brown, president of the National Organization for Marriage, which opposes gay marriage, said in an e-mail that the ruling signifies that “ordinary citizens’ voices and values are being trampled in a headlong rush by activist federal judges to redefine marriage in defiance of thousands of years of human experience.”

The case is De Leon v. Perry, 5:13-cv-982, U.S. District Court, Western District of Texas (San Antonio).

To contact the reporter on this story: Laurel Calkins in Houston at lcalkins@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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