By Trudy Ring
Originally published on Advocate.com February 12 2014 5:50 PM ET
A federal judge heard arguments today on a motion to suspend Texas’s ban on same-sex marriage but made no ruling, nor did he indicate when he might issue a decision.
The hearing before U.S. District Judge Orlando Garcia in San Antonio involved a motion by two same-sex couples who want him to lift the ban immediately while they await a trial in their case, scheduled for later this year.
Garcia said a ruling “will be forthcoming, at some time” and predicted the Texas case would eventually make its way to the U.S. Supreme Court, Lone Star Q reports. “Counselors have made some excellent arguments on both sides,” he added.
Assistant Texas solicitor general Mike Murphy defended the state’s voter-approved constitutional amendment blocking marriage equality, saying, “Same-sex marriage is not included in the fundamental right of marriage ... it is a more recent innovation than Facebook,” according to the Associated Press. Abbott said the definition of marriage is for legislators to decide, not the courts; that the amendment is not discriminatory because gay and lesbian Texans can marry someone of the opposite sex; and that the measure was a means for the state to encourage responsible procreation.
Neel Lane, an attorney representing the two couples, “dismissed the state’s argument that their rights were not violated because they are free to marry members of the opposite sex,” the AP reports. “He said that’s like holding someone's head underwater and saying the person is free to breathe, just not air.” He also countered the argument about procreation by saying, “If marriage is good for children, then it is irrational to prohibit homosexual couples who could have children from being married.” Texas, he observed, allows gay people to adopt children.
The couples who brought the case, Cleopatra DeLeon and Nicole Dimetman, and Mark Phariss and Victor Holmes, spoke with the media after the hearing. “I think it’s interesting that the state points out that the voters approved a constitutional ban in 2005,” said Phariss, who is a lawyer, notes Lone Star Q. “The voters also throughout the entire nation approved a constitutional amendment, the 14th, in 1868, that provides for equal protection under the law. And that provision in the U.S. Constitution trumps anything that Texas does.”
Their suit is the first marriage equality case to come up in the region covered by the U.S. Court of Appeals for the Fifth Circuit, a Deep South circuit that is considered deeply conservative — and whatever the trial court decides, the case will likely go to the appeals court at some point.