Update: On Tuesday, the Fifth Circuit Court of Appeals agreed to expedite oral arguments for the lawsuit disputing Texas’ same-sex marriage ban, in response to a request by one of the couples in the case that’s expecting a child in March. The court will likely schedule arguments before the end of the year.
Monday was an historic day for same-sex couples across the country: in declining to review the ruling that found Utah’s ban unconstitutional, the Supreme Court invalidated similar laws in five states—and Texas could be next.
While the Supreme Court’s decision directly impacts Utah, Indiana, Oklahoma, Virginia, and Wisconsin, it also set up Texas and nineteen other states to potentially see their own bans overturned.
Although Texas’ same-sex marriage ban remains in place, in February a San Antonio district court granted a preliminary injunction to two couples seeking the right to marry in the state after declaring the law in violation of the equal protection and due process clause of the U.S. Constitution. The ruling was in favor of Vic Holmes and Mark Phariss, a Plano couple seeking recognition of their Massachusetts union, and Nicole Dimetman and Cleopatra De Leon of Austin.
With the Supreme Court’s decision, Texas has never been closer to recognizing same-sex marriage. For De Leon and Dimetman, who recently discovered she is expecting a child that’s due in March, a decision can’t come fast enough. Over the weekend, the couple requested that the Fifth Circuit Court of Appeals hear oral arguments in their case next month so that De Leon’s parental rights can be legally established before Dimetman gives birth.
“The child will be exposed to great uncertainty and insecurity if, for some reason, Dimetman is rendered incapable of caring for the newborn child,” San Antonio lawyer Neel Lane, who is representing the couple, said in a statement. “For instance, if Dimetman did not survive childbirth, the baby could be an orphan without a parent directing the baby’s care.”
Same-sex unions have been illegal in Texas since 1997, when the Texas Legislature prohibited the issuance of marriage licenses to “persons of the same sex.” In 2003, Texas banned same-sex civil unions and declared out-of-state marriages and civil unions performed for same-sex couples void. Just two years later, the state again banned same-sex marriage based on voters’ approval of Texas Proposition 2. (A fuller history of same-sex marriage bans in Texas can be found here.)
Texas is still pretty evenly split on the issue, but an April 2014 poll indicated that slightly more Texans now support same-sex marriage than oppose it. Nationwide, half of people view same-sex marriage as a constitutional right.
However, the legalization of same-sex marriage would undoubtedly face robust opposition from Republican politicians, if comments made yesterday by U.S. Senator Ted Cruz are any indication. Hours after news broke of the Supreme Court’s decision—which he called “tragic and indefensible”’—Cruz suggested an amendment to the U.S. Constitution that would block attempts by both the Supreme Court and the federal government to overturn state bans on same-sex unions.
And Cruz is certainly not the only representative who would oppose overturning Texas’ ban. Attorney General Greg Abbott, who currently leads the gubernatorial race, filed the appeal to uphold the state’s ban in late July. “Because same-sex relationships do not naturally produce children, recognizing same-sex marriage does not further these goals to the same extent that recognizing opposite-sex marriage does,” according to the brief. “That is enough to supply a rational basis for Texas’s marriage laws.”
Since last summer, when the Supreme Court initially chose to stay out of the same-sex marriage debate, a cascade of federal rulings have overturned bans in state after state. Thirty states now legally recognize same-sex marriage. Based on that record, it seems more and more unlikely that the law here will be on the books much longer.
(AP Photo | Eric Gay)