Texas gay-marry ban ruled unconstitutional

AUSTIN, Texas - A federal judge declared a same sex marriage ban in Texas unconstitutional Wednesday, but will allow the nation’s second-most-populous state to enforce the law pending an appeal that likely will go to the U.S. Supreme Court.

Judge Orlando Garcia issued the preliminary injunction after two gay couples challenged a state constitutional amendment and a long-standing law. His ruling, made in San Antonio, is the latest in a tangled web of lawsuits across the country expected to end up in the Supreme Court next year.

“Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution,” Garcia wrote in a 48-page order. “These Texas laws deny Plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex.”

Garcia said the couples are likely to win their case and the ban should be lifted, but said he would not enforce his ruling pending one by the 10th Circuit Court of Appeals, which is hearing two other states’ cases. He also will give Texas time to appeal to the 5th Circuit Court of Appeals in New Orleans.

Garcia, appointed by President Bill Clinton in 1994, is the first judge in the conservative 5th Circuit to reach such a decision. Texas Attorney General Greg Abbott, who also is the leading Republican candidate to succeed Gov. Rick Perry, promised to appeal the decision to the New Orleans court.

“This is an issue on which there are good, well-meaning people on both sides,” Abbott said in a statement. “The U.S.Supreme Court has ruled over and over again that States have the authority to define and regulate marriage.”

Abbott is expected to ask the 5th Circuit to formally suspend Garcia’s ruling.

U.S. Attorney General Eric Holder said this week that his state counterparts are not obligated to defend local laws banning same-sex marriage if they believe the laws violate the U.S. Constitution. Democratic attorneys general in at least six states - Virginia, Pennsylvania, California, Illinois, Oregon and Nevada - have declined to defend same sex-marriage bans that have been challenged in court by gay couples.

Abbott’s likely Democratic opponent, state Sen. Wendy Davis of Fort Worth, welcomed the ruling.

“I believe that all Texans who love one another and are committed to spending their lives together should be allowed to marry,” Davis said.

The ruling is the latest in a series of victories for gay rights activists after similar decisions in Utah, Oklahoma and Virginia. The U.S. Supreme Court put the Utah ruling on hold until the 10th Circuit can consider an appeal, and Garcia said he would respect that order as well.

Lawsuits are pending in about 20 states that ban gay marriage, including Michigan, where a federal trial is underway over a constitutional amendment that limits marriage to opposite-sex couples.

Seventeen states and the District of Columbia allow same-sex marriages.

In Texas, Mark Phariss and Victor Holmes filed a federal civil-rights lawsuit saying the gay-marriage ban unconstitutionally denied them the fundamental right to marry because of their sexual orientation.

“Growing up with my mom and dad, I envied their marriage because I really didn’t think I’d have something like that,” Phariss said Wednesday. “Reading that decision, it was the first time I realized, yes, I can get married.”

Cleopatra De Leon and Nicole Dimetman also filed a lawsuit, saying Texas officials violated their rights by not recognizing their marriage conducted in a state where gay marriage is legal.

Dimetman and De Leon released a statement after the ruling saying they “remain hopeful that this matter will continue to move quickly through the courts.” The Austin couple said they took legal action in part because they want their 20-month-old son to see them treated equally.

“Ultimately, the repeal of Texas’ ban will mean that our son will never know how this denial of equal protections demeaned our family and belittled his parents’ relationship,” they said.

Like the legal challenges in other states, the Texas lawsuits relied heavily on last summer’s U.S. Supreme Court ruling that partially overturned the federal Defense of Marriage Act, enacted in 1996 to limit marriage to the union of one man and one woman.

Writing for the 5-4 majority in U.S. v. Windsor, Supreme Court Justice Anthony Kennedy said the law violated the core constitutional principle that people are entitled to equal protection under the law.

The law’s main purpose was to demean and stigmatize homosexuals, relegating them to second-class status and humiliating the children they are raising, Kennedy wrote, concluding that there can be no legitimate government purpose for a law intended to “disparage and to injure.”

In a blunt dissent, Justice Antonin Scalia warned that the ruling would lead to inevitable attacks on similar state laws.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote.

The Texas ban on same-sex marriage, passed into law in 2003 and added to the Texas Constitution by 76 percent of voters in 2005, also is being challenged by two federal lawsuits in Austin that are in the early stages of litigation.

Before Wednesday’s ruling, Texas’s lawyers had argued that the Supreme Court decision left states the authority to define and restrict marriage. The lawyers denied that Texas’ laws were rooted in prejudice, linking the bills instead to the state’s interest in protecting traditional marriage to promote procreation and child-rearing by a mother and a father in “stable and enduring family units.”

While acknowledging another state argument that an injunction would be “rewriting over 150 years of Texas law and radically altering the status quo,” Garcia said that “keeping tradition and history intact is not a justification for the infringement of an individual’s rights.”

Perry on Wednesday accused Garcia of disregarding the will of the people by overturning the amendment.

“Texans spoke loud and clear by overwhelmingly voting to define marriage as a union between a man and a woman in our constitution, and it is not the role of the federal government to overturn the will of our citizens,” said Perry, a Republican.

“The 10th Amendment guarantees Texas voters the freedom to make these decisions, and this is yet another attempt to achieve via the courts what couldn’t be achieved at the ballot box,” Perry said.

Other same-sex marriage opponents were optimistic that the state would win a reversal with the 5th Circuit Court of Appeals.

“The 5th Circuit certainly will get this right,” said Jonathan Saenz, president of the conservative Austin-based advocacy group Texas Values. “They have a habit of correcting federal court judges from Texas that so clearly make decisions that go against established precedent.”

Saenz said the state’s attorneys did a “fantastic job” of defending the ban, and blamed the decision on Garcia being, “an activist judge who seemed to be looking for this outcome from the beginning.”

Before the Texas ban was placed on the ballot, Perry ceremonially signed the measure using the school of an evangelical church in Fort Worth as a backdrop. Perry and other top Republicans have long backed the laws prohibiting same-sex marriage using religious imagery and language.

Todd Staples, a former Republican state lawmaker who sponsored a bill defining marriage as between a man and a woman and who is now running for lieutenant governor, remarked on Twitter recently: “I will change my definition of marriage when God changes his.”

He also denounced Wednesday’s ruling, calling it “the poster child of the culture war occurring in America today.”

In 2003, when the Legislature passed the law that prohibited Texas from validating or recognizing same-sex marriages or civil unions in Texas, one of its Republican sponsors addressed, in the Texas House, assertions that the measure is discriminatory.

“I’ve never made any statement that this bill did not discriminate,” the sponsor, Rep. Warren Chisum, said, according to The Dallas Morning News. “This bill does discriminate. It allows only for a man and a woman to be married in this state and be recognized in marriage in this state.”

Information for this article was contributed by Chris Tomlinson of The Associated Press; by Chuck Lindell of the Austin American-Statesman; Molly Hennessy-Fiske of the Los Angeles Times; by Manny Fernandez of The New York Times; and by Laurel Calkins and Andrew Harris of Bloomberg News.