Texas Same-Sex Marriage Hearing Begins - U.S. Fifth Circuit
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Texas Same-Sex Marriage Hearing Begins

Two Texas same-sex couples may potentially make history by challenging the state's ban on gay marriage in federal court on Wednesday.

U.S. District Court Judge Orlando L. Garcia of Texas' Western District will hear oral arguments from both state officials and the lawyers representing the plaintiffs over granting a preliminary injunction to block Texas' enforcement of its gay marriage ban.

What can we expect from this federal challenge to Texas' same-sex marriage ban?

Changes in the Gay Marriage Landscape

Although it has been only a couple of months since we wrote about this Texas gay marriage case being filed, a good deal has happened in the interim:

For opponents of gay marriage, it may seem that the Lone Star State is now beset on two sides by lost battles in the court. And Texas may be the court battle over gay marriage that sets the tone for the entire Fifth Circuit.

Ready, Set, Windsor!

Both Utah and Oklahoma's gay marriage laws were struck down by federal district judges on the strength of those judge's interpretation of U.S. v. Windsor. The somewhat flowery prose of Justice Kennedy in emphasizing the dignity and protection owed to same-sex couples has convinced more than one federal judge that same-sex marriage bans violate the Equal Protection Clause.

And why not? In a rare and sweet moment of irony, U.S. District Court Judge Robert J. Shelby quoted a sarcastic Justice Scalia in declaring that Windsor supports striking down state gay marriage bans. The argument follows that if SCOTUS could find no convincing government interest in the federal government prohibiting gays and lesbians from being recognized as married, then by what alchemy could the state produce such an interest?

Even after filing a massive brief in defense of its same-sex marriage ban, Nevada's Attorney General and Governor pulled their support. According to The Associated Press, Attorney General Catherine Cortez Masto didn't believe The Copper State's due process and equal protection arguments were "sustainable." Part of the reason was the Ninth Circuit's ruling extending Batson to gays and lesbians -- a ruling which relied on the equal protection reasoning in Windsor.

One of the couples ready to enter the courtroom on Wednesday, Mark Phariss and Victor Holmes, told The Dallas Morning News that "[i]t's clear that the wind is at our backs. And not just in Texas, but nationally."

With the political momentum and case law lining up against Texas' marriage ban, Phariss may be right to be optimistic. But if prior federal marriage cases are any indication, the fight against same-sex marriage in Texas will be anything but smooth sailing.

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