Federal lawsuit plaintiffs Vic Holmes and Mark Phariss
What's Going On in Texas?
Legal challenges are slowly moving ahead in the Lone Star State, while legislators are working on passing marriage equality bills, even though the bills will require a lot more work and time before they can pass.
Everything's bigger in Texas, which may be why the state has more marriage lawsuits than any other. Of those, the most promising is De Leon v. Perry, in which a federal judge ruled that the state's marriage ban is unconstitutional in February 2014.
In his decision in De Leon v. Perry, Judge Orlando Garcia's justification for legal marriage equality was particularly favorable. He found that laws singling out LGBT citizens are subject to heightened scrutiny (similar to laws discriminating against other groups historically oppressed based on immutable characteristics like age, race, or gender), and that Texas's ban fails under any standard of review.
The state appealed that decision to the Fifth Circuit Court of Appeals. Former Gov. Rick Perry and former attorney general, now-Gov. Greg Abbott, have used particularly strong language in opposition to gay and lesbian equality. A three-judge panel at the Fifth Circuit heard oral arguments in the De Leon case in early January and could issue a ruling at any time. In the meantime, Garcia has placed a stay on his decision, keeping it from going into effect.
In February of this year, Travis County Probate Judge Guy Herman found Texas's ban on same-sex marriage to be unconstitutional, though he also placed a stay on his ruling.
Despite that stay, one same-sex couple was able to marry in Travis County in February, after receiving permission from a different judge who determined that due to one woman's ovarian cancer, she and her partner of 30 years should be allowed to marry in their home state.
What Happens Next?
The same day the Fifth Circuit heard oral argument in the federal Texas case, the three-judge panel heard cases from Louisiana and Mississippi as well. Initial reports from inside the courtroom suggested that the court may be inclined to rule in favor of equality, but with a bipartisan judicial panel, nothing is certain until a ruling is handed down, especially because judges in the Fifth Circuit are generally known for a cautious, conservative approach.
Once the Fifth Circuit rules, parties will likely appeal to the Supreme Court. The nation's high court agreed to hear a consolidated case out of four states in early 2015, with oral arguments likely scheduled for April and a decision handed down by June.
The state's Republican leadership has not only appealed Herman's decision but asked the state Supreme Court to invalidate the marriage of Suzanne Bryant and Sarah Goodfriend, which was specifically granted by state District Judge David Wahlberg. The Texas Supreme Court agreed to put Wahlberg's decision on hold, though that decision came down after Bryant and Goodfriend recieved their marriage license in Travis County. The court has not yet ruled on the validity of the women's marriage license.
In the latest flurry of filings, Texas's Attorney General Paxton also asked the state's high court to declare that lower courts cannot rule on the constitutionality of Texas's marriage ban while the issue is being considered by the Fifth Circuit Court of Appeals, and or until the U.S. Supreme Court rules on marriage cases later this year.
How Do Texans Feel About Marriage?
Polling has fluctuated wildly in Texas, but as in other traditionally conservative states, support for marriage equality has generally risen over the last few years.
The most recent survey, conducted last October by the University of Texas, found that 42 percent of voters favor marriage equality, with 47 percent opposed. Other 2014 surveys have placed support at 37 percent and 48 percent.
Texas voters had an opportunity to weigh in on same-sex marriage at the ballot box in 2005, with about 76 percent supporting a ban written into the state's constitution. That amendment followed a statutory ban overwhelmingly approved by the legislature in 1997 and a ban on civil unions in 2003.
Can Gay and Lesbian Couples Get Married in Texas?
Not yet. Same-sex marriages can't begin until Judge Garcia lifts his stay. And he can't do that until the state exhuasts its opportunities for appeal. Marriage is therefore unlikely to start in Texas for several more months at the earliest.
Unlike in a few other states, there was no brief window after Judge Garcia's ruling during which gay couples were allowed to marry in Texas.
Bryant and Goodfriend, the lesbian mothers who were able to marry in Travis County (which includes the state capital of Austin), obtained special and exclusive permission to marry. The state district judge who ruled in their favor explicitly noted in his ruling that it applied only to the two women named, not to any other same-sex couples in the state.
Plaintiffs Cleopatra De Leon and Nicole Dimetman-De Leon
What Are the Arguments for Marriage Equality?
The plaintiffs in the De Leon case argued that Texas's refusal to recognize their relationship denies them a wide range of benefits, ranging from issues such as wrongful death and community property, to divorce and burial. They also claim to have suffered "state-sanctioned discrimination, stigma, and humiliation."The district court upheld these claims.
The plaintiffs also claimed that the ban constitutes a violation of the Equal Protection and Due Process clauses of the 14th Amendment to the U.S. Constitution, and should therefore be subject to heightened scrutiny. In addition, they argued that marriage is a fundamental constitutional right. The court upheld all of these claims, as well.
At this point, these claims are fairly boilerplate for marriage equality lawsuits. In almost every single other federal case, judges have agreed with plaintiffs and overturned marriage discrimination laws. Judge Garcia's ruling is completely consistent with those coming from other federal courts.
What Are the Arguments Against Marriage Equality?
When Texas passed its statutory marriage ban, legislators explained that "traditional marriage consisting of a man and a woman is the basis for a healthy, successful, stable environment for children. It is the surest way for a family to enjoy good health, avoid poverty, and contribute to their community. The sanctity of marriage is fundamental to the strength of Texas' families, and the state should ensure that no court decision undermine this fundamental value." Attorneys for the state maintain that that justification is still valid.
Specifically, the state cited two bases to support the marriage ban: increasing the likelihood of children being raised by a mother and father, and encouraging stable family environments.
But Judge Garcia ruled that "limitng marriage to opposite-sex couples fails to further this interest. ... Defendants have not provided any evidentiary support for their assertion that denying marriage to same-sex coupels positively affects childrearing. ... Defendants have failed to establish how recognizing a same-sex marriage can influence, if at all, whether heterosexual couples will marry."
The state defendants also referred more generally to "tradition" in their arguments, and Garcia rejected that justification as well.
As in most states fighting to uphold their bans on same-sex marriage, attorneys for Texas claimed that the 1972 case Baker v. Nelson prevents federal judges from ruling on marriage. The court rejected that argument, citing subsequent doctrinal developments that have expanded the federal judiciary's interpretation of the scope of marriage rights.