On Monday, the same-sex couples at the center of the gay marriage legal challenge in Texas, petitioned US District Judge Orlando Garcia at the Federal Courthouse in San Antonio to allow gay marriage to begin taking place in Texas immediately. This occurred despite the US Fifth Circuit Court of Appeals tentatively put Texas’ same-sex marriage case on the calendar for the week of January 5, 2015, Texas Lawyer reported.
Two couples sued the state to overturn the ban. They are Nicole Dimetman and Cleopatra De Leon, who had to go to Massachusetts to get married. They want Texas to recognize their union for a variety of legal reasons, including the fact that they have a child together and Dimetman is pregnant with their second. The other couple, Plano residents Mark Phariss and Vic Holmes, have been together for 17-years want to be able to get married in their home state of Texas, the San Antonio-Express News reported.
Subsequently, Texas officials filed a court document requesting that the federal judge uphold the state’s same-sex marriage ban. In the response headedup by Attorney General Greg Abbott who will take office as Governor in January, the State pointed out the sudden nature the plaintiffs’ request offered no explanation for why they waited so long to file their motion, which came “nine months after the Court’s unopposed stay and at the cusp of expedited oral arguments in the Fifth Circuit.”
The State wrote that the motion was “out of order, since the Court stayed the entire case pending appeal and the plaintiffs have not sought to reopen the case.”
They added that the plaintiffs’ requested relief “is also jurisdictionally barred because it would interfere with the Fifth Circuit’s appellate jurisdiction and it would alter the status quo while the case is on appeal.”
The Houston Chronicle reported that Daniel McNeel “Neel” Lane, the couples’ lawyer, responded that circumstances had changed in the last nine months since the US Supreme Court decided not to review gay marriage bans overturned in five other states, effectively legalizing same-sex marriage in Utah, Oklahoma, Virginia, Indiana, and Wisconsin. Thirty-five states and Washington, DC have legalized same-sex marriage.
In late October, the Court announced the decision to hear arguments challenging same-sex marriage bans in Texas would be pushed back to early January.
In February, Garcia ruled that the ban on same-sex marriage was unconstitutional. He also issued a stay, which meant that the ban remained in effect for the time being until his ruling could be reviewed upon appeal, the Dallas Morning News reported.
In a 48-page opinion Garcia wrote, “Regulation of marriage has traditionally been the province of the states and remains so today,” Texas Lawyer highlighted.
Garcia also remarked “Any state law involving marriage or any other protected interest must comply with the United States Constitution.”
Garcia said that the U.S. Supreme Court in United States v. Windsor ruled in 2013 “that the federal government cannot refuse to recognize a validstate-sanctioned same-sex marriage” and added that “lower courts must apply the Supreme Court’s decision in Windsor and decide whether a state can do what the federal government cannot, discriminate against same-sex couples.”
The recently filed motion to lift the stay referenced the February ban void, stating “this Court held that Texas’ laws prohibiting same-sex couples from marrying and denying recognition to same-sex marriages validly entered in other states violate the Fourteenth Amendment of the United States Constitution.”
According to Lane, the Texas ban harms gay couples, “forcing them to incur extra legal expenses to adopt children and transfer powers overmedical decisions.” He also cited spousal survivor benefits.
The State of Texas appealed Garcia’s ruling to the Fifth Circuit Court of Appeals in New Orleans and is slated to be heard on January 9.
This is a highly charged issue and both sides feel strongly about outcome of this case, which could go all the way to the US Supreme Court, according to the Dallas Morning News.
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