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Same Sex Couples Ask Tex. Judge to Lift Stay, Allow Marriages

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By Mark Wilson, Esq. on November 24, 2014 3:01 PM

Thanks to some intrepid journalism by FindLaw blogger (and native Texan) Brett Snider, we've obtained a copy of the plaintiffs' motion to lift the stay on the injunction against Texas' same-sex marriage ban.

That's a lot of prepositions. Way back in February, the U.S. District Court for the Western District of Texas held the state's same sex marriage ban unconstitutional. The court stayed enforcement of its injunction, however, because same-sex marriage cases were pending at the Supreme Court and in other federal circuit courts of appeal.

Just Let Us Marry Already!

That's sort of finito, according to the plaintiffs' motion. The Supreme Court denied writs of certiorari in five cases from three circuits, effectively dissolving the stays imposed on those injunctions.

"While these cert denials concededly do not have legal significance, the constitutional environment in which the Court initially entered the stay have now changed radically and permanently," the motion argues. Essentially, same-sex marriage appears to be here to stay, so lift the injunction, already.

Plus, the plaintiffs continue to suffer tangible injury in the form of an inability to list both parents of the plaintiffs' children as their parents under Texas law. And if something happens to the birth parent, the child will be without recourse, as the other parent won't legally be considered a "parent."

Indeed, said Mark Phariss, one of the plaintiffs, "Vic and I hope the federal district court in San Antonio will lift the stay to allow us to marry now. With each day of delay, our loving, committed 17-year relationship is treated unequally. With each day of delay, we are forced to run the risk that if, God forbid, one of us dies in a car wreck or something else happens, we will never be able to marry -- to exchange vows, to say 'I do,' to call each other spouses. These harms simply can never be cured and justify lifting the stay now."

Prudence? Or Not.

Of course, we've learned that not every circuit is amenable to same sex marriage. Following the Sixth Circuit's decision to uphold same sex marriage bans in Michigan, Ohio, Kentucky, and Tennessee, some kind of legal authority exists to support the idea that piecemeal circuit-by-circuit decisions are a real possibility.

In other words, the Fifth Circuit still has the authority to reverse the Texas district court, which would then be bound by that decision, regardless of what the Supreme Court has said (or, in this case, not said). Even though the plaintiffs' motion persuasively argues that the conditions under which the district court's stay was granted are no longer present, the uncertainty surrounding the same sex marriage situation could very well counsel against allowing marriages that would be shut off in a few weeks, leaving married couples in a state of legal limbo.

Oral arguments in the Texas same sex marriage case will be heard January 9, reports the Austin American-Statesman. Even if the district court lifted its own stay, defendants could still appeal that decision to the Fifth Circuit.

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