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5th Cir. Hears Gay Marriage: Thoughts From Plaintiff Mark Phariss

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By Brett Snider, Esq. on January 09, 2015 10:06 AM

The Fifth Circuit Court of Appeals is hearing arguments today in three separate gay marriage appeals, from Texas, Mississippi, and Louisiana.

The longest pending of these cases is the one from Texas, DeLeon v. Perry, which has been in a holding pattern in the Fifth Circuit for almost a year. Now, nearly 11 months since the district court struck down Texas' same-sex marriage prohibition as unconstitutional, the parties will have their chance (at 30 minutes per side) to have their cases heard before the appellate court.

I had the privilege of speaking with Mark Phariss, one of the four plaintiffs in DeLeon, in November, who shared these thoughts about the case:

Mark Phariss and his partner Victor Holmes are one of two same-sex couples named as plaintiffs in the Texas gay marriage case before the Fifth Circuit. Phariss is an experienced attorney and general counsel, and attended law school at Vanderbilt with the Texas governor-elect.

BS: So how did you and Victor first become involved in the DeLeon case?

MP: After Windsor came down, I was speaking with a long-time friend (Frank Stenger-Castro, the Deputy GC for Akin, Gump, Strauss, Hauer, and Feld) about the need for someone in Texas to challenge the state's ban. Frank suggested his firm, Akin/Gump, should take on the case, and about a week later his management committee approved the case. Frank got back to me asking about plaintiffs, and I asked Vic, "What about us?" It kind of snowballed from there. I will admit we started getting cold feet before meeting with our lawyer, Barry Chasnoff of Akin/Gump.

BS: How often are you personally involved in the legal parts of your case?

MP: I haven't done any of the legal work. We're still very involved in the case itself; we have weekly conference calls with all the plaintiffs and lawyers. And I'm not the only attorney who's also a plaintiff. Nicole Dimetman, part of the other couple in the case, is also a lawyer. I try to read every one of the amicus briefs in the case and listen to the live or recorded arguments in similar cases before other Circuits. All the plaintiffs get to comment on any briefs or filings before they go out in our case.

BS: Does this case feel any differently than the ones you've handled as counsel?

MP: Generally, I haven't treated this case any differently than work stuff -- I want to win in most cases. But this one is also far more personal than any other I've been involved in.

BS: Do you think the experience is different for you because you're an attorney?

MP: As a lawyer, I feel a little guilty because I'm not actually doing the hard work. However, it's been incredibly educational in terms of appellate practice and how real individual plaintiffs feel in these cases. I've never been a personal plaintiff before; it involves a lot of worrying and angst.

BS: On the client side, was there anything you noticed about the flow of your case?

MP: At times, I've been disappointed in the pacing of the case. Other gay marriage federal cases have gone from district court to Circuit hearing in five to six months, while our case has taken up to a year. I don't blame the Fifth Circuit in any way; they have a packed calendar. There's really nothing you can do about it; you kind of have to accept the pace.

BS: I'm guessing you tried to speed up the appellate process whenever you could.

MP: We requested an expedited hearing in April that was denied, and we've allowed the state a number of extensions they've asked for. Nicole is about seven months pregnant, and she was hoping for a decision prior to delivery.

BS: Do you connect much with the plaintiffs in other gay marriage cases?

MP: We actually have a Facebook page for marriage equality plaintiffs around the country. We use it to cheer on each others' victories. A victory for us in Texas isn't just about our individual cases, it's about marriage equality for everyone.

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