by EDGAR WALTERS
A federal court in San Antonio will hear arguments Wednesday in a case challenging the legitimacy of Texas’ constitutional ban on same-sex marriage. It is one of several cases pending in courts statewide, a venue in which gay rights activists say their odds of winning legal protections are far better than in the conservative state Legislature.
In both federal and state court, activists are seeking to increase legal protections for gay and lesbian Texans by challenging the state’s constitutional ban on same-sex marriage and by pushing the state to recognize gay marriages granted in other states, including in instances of divorce. Opponents of gay marriage, meanwhile, are defending the state’s constitutional ban and challenging the city of Houston’s recent expansion of partner benefits to cover same-sex spouses of city employees. Challenges to Texas gay rights’ laws come amid a national effort by activists to end restrictions on their ability to marry. And a win in Texas would be a major coup for either side of the debate.
Opponents of same-sex marriage disapprove of the legal challenges to Texas’ gay marriage ban. They say the issue is best left to voters and point to the overwhelming public vote that allowed the gay marriage ban to be added to the state constitution. In 2005, 76 percent of Texas voters approved an amendment that limited marriage in Texas to one man and one woman.
Jonathan Saenz, president of the conservative group Texas Values, said the definition of marriage is “an issue that is so clear and foundational in history and law.”
If a federal judge were to rule against the Texas amendment banning same-sex marriage, he said, “it would certainly call into question whether or not the state of Texas continues to have the ability to prevent the federal government forcing its will on the Texas people.”
Chuck Smith, executive director of the LGBT advocacy group Equality Texas, however, said recent polling data indicates that almost a decade after the amendment’s passage, a majority of Texans approve of legal recognition for same-sex spouses.
“There is not a rational, legal basis to deny gay and lesbian couples the freedom to marry the person whom they love,” he said.
The federal suit in San Antonio, which was was brought by two couples, seeks to overturn Texas’ constitutional ban on same-sex marriage. Plaintiffs Nicole Dimetman and Cleopatra De Leon, who were married in Massachusetts in 2009, say the state’s gay marriage ban has caused them undue hardship that other married couples do not face. For example, the couple have one child together, but because Texas does not recognize their union, only one parent’s name was allowed on the birth certificate.
The plaintiffs, joined by gay rights advocates around the country, are resting their hopes on presiding U.S. District Judge Orlando Garcia, who was appointed by President Bill Clinton and is the brother-in-law of Democratic lieutenant governor candidate and state Sen. Leticia Van de Putte of San Antonio. Advocates speculate that Garcia will be more sympathetic to same-sex couples than District Judge Sam Sparks, an appointee of George H. W. Bush in Austin, who is set to hear two similar lawsuits challenging the same-sex marriage ban later this year.
Whatever Garcia decides will likely be appealed to a higher court, Smith said. The case could make its way the U.S. Supreme Court, which could issue a decision on same-sex marriage with national implications. Other federal courts in recent months have issued rulings in favor of same-sex marriage, and more cases are pending nationwide.
Saenz said that the court cases threaten to add Texas “to a growing list of states like Utah and Oklahoma, where citizens’ wishes have been tossed out by activist judges.”
In Utah and Oklahoma, federal courts in recent months have voided same-sex marriage bans, basing their rulings on the 2013 Supreme Court decision United States v. Windsor. In that case, the Supreme Court struck down a part of the federal Defense of Marriage Act that had restricted the federal interpretation of marriage to apply only to heterosexual couples, ruling that the law discriminated against married gay and lesbian couples by placing them “in an unstable position of being in a second-tier marriage.”
The issue of whether Texas will recognize same-sex divorces is also currently before the Texas Supreme Court. The conservative elected body, the state’s highest civil court, will decide whether a gay couple who got married in Massachusetts can be legally divorced in Texas, and whether allowing that divorce would require the state to recognize same-sex unions.
In Houston, two cases that question whether same-sex couples should qualify for public benefits are pending in federal court. In those cases, taxpayers sued the city of Houston and Mayor Annise Parker for issuing an executive order requiring the city to recognize the unions of all city employees when offering spousal benefits.
Jared Woodfill, the Harris County Republican Party chairman and lead attorney for the plaintiffs, told the Houston Chronicle in December that Parker’s order violated the Texas Constitution.
“This is one of the most egregious acts by an elected official I’ve ever seen,” he said.
Evan Wolfson, president and founder of Freedom to Marry, a national advocacy group for same-sex marriage, said the pending marriage cases in Texas were part of a larger national movement. He predicted the U.S. Supreme Court would hand down a decision in favor of same-sex marriage once states had reached a “critical mass” of support.
“Texas is a big deal,” he said. “When Texas judges speak out in support of the freedom to marry, it really sends a message that reverberates around the country.”
Ken Upton, senior counsel for Lambda Legal, an LGBT legal advocacy group, said Texas’ constitutional ban on same-sex marriage contributed to the conflicting “patchwork of laws” around the country. “The idea that you’re married in one state and not in another … that’s just unworkable,” Upton said, adding that the U.S. Supreme Court could hand down another decision on same-sex marriage as early as next year.
“It’s going to have to have a national solution,” he said. “Whether it’s going to be sooner or later, we don’t know.”
EDGAR WALTERS reports for The Texas Tribune where this story was originally published. It is made available here through a news partnership between the Texas Tribune and the San Marcos Mercury.
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