The motion, filed Monday by San Antonio attorney Neel Lane, who represents plaintiffs Cleopatra De Leon and Nicole Dimetmen, is asking U.S. District Judge Orlando Garcia to lift the stay on his February 2014 ruling declaring the ban unconstitutional.
At the time of his ruling, Garica stayed the decision pending the state’s appeal to the Fifth Circuit Court of Appeals.
The plaintiffs’ motion says recent actions by the U.S. Supreme Court no longer support the stay’s continuance:
The Court should immediately lift the stay because the Supreme Court’s actions following entry of the stay no longer support its continuance. The Supreme Court denied certiorari in appeals from the Fourth, Seventh, and Tenth Circuits’ decisions finding that state laws banning same-sex marriage were unconstitutional. The denial of certiorari dissolved the stays in place over those cases.
Since then, the Supreme Court denied requests for stays (or actually lifted stays) in other cases. While these cert denials concededly do not have legal significance, the constitutional environment in which the Court initially entered the stay have now changed radically and permanently. Fully two-thirds of citizens of the United States now have an enforceable federal constitutional right to marry the person of their choice, irrespective of gender.
Lane tells Texas Public Radio the irony is that “the Texas case was stayed based on the Utah case being stayed, but today, in Utah, people of the same sex can get married if they want to, in Texas they still can’t.”
Texas attorney general Greg Abbott has appealed Garcia’s ruling and the the 5th Circuit will hear arguments in January.
Even if Garcia lifts the stay, stay officials would likely ask the 5th Circuit to block same-sex marriages until it rules on the appeal.