Texas Gay Marriage Ban Unconstitutional: Fed. Judge - U.S. Fifth Circuit
U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

Texas Gay Marriage Ban Unconstitutional: Fed. Judge

A Texas federal court ruled that the state's gay marriage ban was unconstitutional on Wednesday, but the ruling is stayed pending appeal.

U.S. District Court Judge Orlando Garcia found in De Leon v. Perry that Texas' laws prohibiting two Texas same-sex couples from marrying (and having their marriages recognized) was in violation of both the Fourteenth Amendment Equal Protection and Due Process Clauses.

While we wait on the Fifth Circuit to respond, what's worth knowing in this decision?

Another Gay Marriage Ban Falls Before Windsor

It's been an interesting few months for marriage equality, and those the federal district courts have shown just how powerful Windsor is in invalidating state marriage bans.

When the hearing in De Leon commenced, federal district courts in Utah and Oklahoma had already struck down their states' gay marriage bans based on the logic of Windsor. Two days later, Virginia's marriage ban was also struck down.

Judge Garcia's reasoning in the De Leon ruling wasn't too different than those prior cases: finding no legitimate interest in keeping same-sex couples from marrying and that the state's constitution denied these couples a fundamental right in marriage.

In fact, in what may become a standard form for federal district court opinions on gay marriage, Judge Garcia took the language from Windsor invalidating DOMA Section 3 and clipped out references to "DOMA" and replaced them with "Texas" or "Texas' laws."

Thus, Scalia was right again, Windsor can apply just as easily (with cutting and pasting) to the states.

Return of Lawrence

But since this is Texas, we shouldn't forget about the other bedrock gay rights case proceeding Windsor, Lawrence v. Texas. The De Leon court reveled in using Justice Scalia's dissent in Lawrence to knock down the Lone Star state's justifications for the marriage ban. For example:

"[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation since the sterile and elderly are allowed to marry."

-- quoth Scalia. But Judge Garcia cited this as justification for not accepting the state's arguments about procreation.

Similarly, the De Leon court quoted Justice Scalia in chiding the Lawrence Court for trying to separate "preserving the traditional institution of marriage" from pure "moral disapproval of same-sex couples." And remember, bare animus/moral disapproval is a not a legitimate justification under Romer.

With this quote, the De Leon court swept aside all the state's potential "tradition" arguments with Scalia's own hand.

Waiting on Appeal

The ruling on Wednesday was immediately stayed, citing SCOTUS' decision in the Utah case, and the ball is now in the Fifth Circuit's court.

For Mark Phariss and Victor Holmes, this means more waiting to see if their home state will allow them to be legally wed. For Cleopatra De Leon and Nicole Dimetman, it means not having their legal out-of-state marriage recognized.

These frustrations aside, this case is a victory for gay marriage advocates -- in Texas and across the nation.

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