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Judge Strikes Down Texas Gay Marriage Ban, Calls It Unconstitutional

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It’s a victory that, as recently as just a few months ago, many thought unimaginable: On Wednesday afternoon, San Antonio District Court judge Orlando Garcia granted a preliminary injunction to two same-sex couples who had filed suit seeking the right to marry in Texas. In his opinion, Judge Garcia wrote: “This Court holds that Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process.”

The decision strikes down Texas’s voter-approved 2005 state constitutional amendment defining marriage as between one man and one woman. The preliminary injuction means the state can’t enforce the ban, but Garcia also stayed the order pending an expected appeal from Attorney General Greg Abbott. This means that, for now, gay men and women still cannot legally marry in Texas. But 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 this 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.

Which is an interesting notion because two of the plaintiffs in the case were initially hesitant about getting involved. As I wrote in the February issue of Texas Monthly, Mark Phariss and Victor Holmes—a Plano couple who seek to marry in Texas—first resisted the idea of being part of the lawsuit. (The other couple in the suit, Austin-based Cleopatra De Leon and Nicole Dimetman, married in Massachusetts in 2011 and are suing for Texas to recognize their out-of-state marriage.) Now Phariss and Holmes might find themselves in front of the nation’s highest court and at the center of a historic civil rights case.

For now, the decision offers increased evidence that, in the aftermath of last year’s  Supreme Court decision to strike down the federal Defense of Marriage Act, state bans on same sex marriage may not be considered constitutional for much longer.  

“All of these state constitutional amendments banning gay marriage were based on the same design as DOMA,” said Upton. “And if that design was unconstitutional, then how can all these mini-DOMA s around the state be declared anything but unconstitutional, too?” 

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