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Texas Gay Marriage Ban Challenged in Federal Court

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By Brett Snider, Esq. on October 31, 2013 3:55 PM

Texas' gay marriage ban has been challenged in federal court by two same-sex couples who filed suit in San Antonio on Monday.

According to MySanAntonio.com, Mark Phariss and Vic Holmes along with Cleopatra De Leon and Nicole Dimetman are suing to bar the state from enforcing Texas' ban on same-sex marriage, arguing "[t]here is no rational basis" to deny the couples the right to marry.

By far not the first suit of its kind, so what do the couples allege?

Challenge to Texas Marriage Amendment

Similar to states across the nation in the mid-to-late 2000s, Texas passed a constitutional amendment in 2005 (Proposition 2) which amended the state constitution to single out marriage as "only of the union of one man and one woman." The amendment also removed any ability for future domestic partnerships or civil unions with rights similar or identical to marriage.

Enter Phariss and Holmes, a gay couple who want to marry in Texas but cannot. Also enter De Leon and Dimetman, a lesbian couple who were married in Massachusetts in 2009, but wish to be either re-married in Texas or have their union legally recognized by the state. Both couples have one partner who served at least a decade in the U.S. armed forces.

Using the very effusive equal protection language in U.S. v. Windsor (thanks to Justice Kennedy), the couples argue that the Texas constitutional amendment and corresponding state laws deny them the dignity and rights afforded to opposite-sex couples.

They also make the substantive due process argument that stems from the Loving pedigree of cases, that marriage is a fundamental right.

Equal Protection Post- Windsor

These arguments have been made under similar circumstances -- although the Prop 8 case was ultimately decided on standing -- and both Hollingsworth and Windsor frame this Texas gay marriage challenge in a favorable light.

Although SCOTUS frustratingly refused to name what type of scrutiny it used in deciding that the Defense of Marriage Act (DOMA) violated equal protection (for other frustrating examples see Romer and Lawrence) Justice Kennedy did seem keen on noting that DOMA-type laws exist necessarily to "demean lawful same-sex marriage."

Texas' refusal to acknowledge any out-of-state legal gay marriages seems unfriendly to the ethos of equal protection invoked in Windsor, but the district court may feel differently.

The complaint also makes note of the confusing state of federal benefits even post-Windsor, placing the federal military benefits and other work benefits of both Texas couples in limbo.

Summons have been issued for the named parties in the gay marriage challenge, including Gov. Rick Perry, but as of Tuesday, no hearing has been set.

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