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Federal judge hears challenge to Texas’ same-sex marriage ban

Wednesday, February 12, 2014
Eric Gay, APCouples (from left) Cleopatra De Leon and  Nicole Dimetman, and Victor Holmes and Mark Phariss, talk with the media after as they leave the U.S. Federal Courthouse, Wednesday, Feb. 12, 2014, in San Antonio.

Eric Gay, AP
Couples (from left) Cleopatra De Leon and Nicole Dimetman, and Victor Holmes and Mark Phariss, talk with the media after as they leave the U.S. Federal Courthouse, Wednesday, Feb. 12, 2014, in San Antonio.

SAN ANTONIO, Texas — A lawyer representing Texas asked a federal judge Wednesday to reject pleas from two gay couples to suspend the state constitution’s definition of marriage as between one man and one woman, calling the legalization of same-sex marriages “a more recent innovation than Facebook.”

Mike Murphy, an assistant Texas solicitor general, told District Judge Orlando Garcia if he lifted the state’s voter-approved ban on gay marriage he would be injecting himself into a social and political debate that should be left to lawmakers.

“These questions are political questions, not constitutional rights,” he told the court. “Same-sex marriage is not included in the fundamental right of marriage … it is a more recent innovation than Facebook.”

Garcia scheduled Wednesday’s hearing, which he noted was on President Abraham Lincoln’s birthday, to consider a motion by two couples for a preliminary injunction immediately lifting the Texas gay m arriage ban pending a trial later this year. Garcia did not immediately rule or give an indication when he might release a written decision but predicted this case, or one of 22 similar ones in other states, “will make its way to the Supreme Court.”

The case before Garcia is the first of its kind in Texas, and in the conservative 5th U.S. Circuit Court of Appeals. Mark Phariss and Victor Holmes filed a federal civil rights lawsuit complaining that Texas’ ban unconstitutionally denies them the fundamental right to marry because of their sexual orientation. The other lawsuit was filed by Cleopatra De Leon and Nicole Dimetman, who argue that Texas officials are violating their rights and those of their 2-year-old child by not recognizing their marriage license from Massachusetts.

Holmes and De Leon are both U.S. Air Force veterans who served in San Antonio, though both couples have since moved away.

Texas Attorney General Greg Abbott, a Republican running for governor, opposes legalizing gay marriage and has vowed to defend the law. But civil rights groups recently won injunctions against similar bans in Utah and Oklahoma relying on the same argument being cited in the Texas case – that banning gay marriage violates the equal protection clause of the 14th Amendment.

Neel Lane, an attorney for the two couples, dismissed the state’s argument that their rights were not violated because they are free to marry members of the opposite sex. He said that’s like holding someone’s head underwater and saying the person is free to breathe, just not air.

He also rejected Murphy’s argument that lawmakers did not exclude homosexuals by passing the ban but were trying to promote responsible procreation.

“If marriage is good for children, then it is irrational to prohibit homosexual couples who could have children from being married,” he said, pointing out that gays may adopt children in Texas.

While Garcia listened to arguments, another federal judge decided Wednesday that Kentucky must recognize gay marriages performed in other states. In a 23-page ruling, U.S. District Judge John G. Heyburn II concluded that the government may define marriage and attach benefits to it, but cannot “impose a traditional or faith-based limitation” without a sufficient justification for it.

In his comments from the bench, Garcia mentioned key civil rights laws passed after the end of the Civil War and pointed out that racial segregation and bans on interracial marriage were part of American tradition until federal judges declared them unconstitutional.

Attorneys general in other states have taken mixed approaches to court challenges to bans on gay marriage. Utah and Oklahoma are fighting rulings lifting their bans. In Nevada and Virginia, attorneys general have chosen not to defend them.

The couples denied that they are trying to redefine marriage or carve out a new constitutional right.

“Marriage is something when two people who are committed to each other, who love each other and who want to demonstrate that commitment,” Holmes said. “I think that is what the tradition is about and that tradition should apply to us.”

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15 more reader comments:

  1. Fingers crossed

    Posted on Wednesday, February 12, 2014 at 6:51pm
  2. Yay texas!! Legalize it already

    Posted on Wednesday, February 12, 2014 at 6:51pm
  3. Just another brick in the Wall

    Posted on Wednesday, February 12, 2014 at 6:53pm
  4. Texas, you next!

    Posted on Wednesday, February 12, 2014 at 6:54pm
  5. Hope judge does the right thing.

    Posted on Wednesday, February 12, 2014 at 6:55pm
  6. C’mon Texas, do what’s right, for a change!

    Posted on Wednesday, February 12, 2014 at 6:59pm
  7. Everything’s bigger in Texas! Legalize same sex marriage and equality :D

    Posted on Wednesday, February 12, 2014 at 7:31pm
  8. It won’t be Texas that does the right thing; I have lived here all of my life, believe me. It will be the FEDERAL court system intervening and FORCING Texas to do the right thing. That is the way that it has always been when it comes to making progress on human and civil right in Texas and many other states in the South and Midwest. They only change when they are forced to do so.

    Posted on Wednesday, February 12, 2014 at 7:34pm
  9. One by one they are being picked off, some kicking and screaming!

    Posted on Wednesday, February 12, 2014 at 8:04pm
  10. This would be such an accomplishment for human equality in the U.S.

    Posted on Wednesday, February 12, 2014 at 8:10pm
  11. I sure as hell hope so me n my brother had a conversation about Texas doin this and he told me that Texas wouldn’t ever do it… I sure ass hell hope we do I live in a state I cant even get married in

    Posted on Wednesday, February 12, 2014 at 9:09pm
  12. oh yes, texas, that’s that state which Wishes it were new france. Dommage!

    Posted on Wednesday, February 12, 2014 at 9:15pm
  13. Do the right thing, Texas! For once!!!

    Posted on Wednesday, February 12, 2014 at 10:02pm
  14. Fingers crossed that this passes!

    Posted on Wednesday, February 12, 2014 at 10:34pm
  15. baby steps, but in the right direction.

    Posted on Wednesday, February 12, 2014 at 11:00pm