Despite the hope of LGBT activists that the case would be heard sooner, the US Court of Appeals for the Fifth Circuit in New Orleans has tentatively scheduled arguments challenging Texas’ same-sex marriage ban for early next year, during the week of January 5.
Mark Phariss and his partner Vic Holmes of Plano, along with Cleopatra DeLeon and Nicole Dimetman from Austin, filed their original federal lawsuit challenging the state’s marriage ban on October 28, 2013 in San Antonio.
On November 22 of that year, the two couples sought a preliminary injunction to bar Texas from enforcing the ban. Their case went to court on February 11 of this year.
At the hearing, their attorney Neel Lane told San Antonio Federal District Judge Orlando Garcia, “We’re not seeking to rewrite any Texas law. We’re seeking to enforce the Constitution that protects everyone.”
Assistant Texas Solicitor General Michael Murphy urged the judge to deny the injunction saying, “The right to marry has never included the right to same-sex marriage. Plaintiffs’ constitutional claims are not likely to succeed on the merits, as they are foreclosed by direct, binding Supreme Court precedent and by application of equal-protection and due-process standards.”
Two weeks after the hearing, Judge Garcia declared Texas’ ban on same-sex marriage unconstitutional. “Regulation of marriage has traditionally been the province of the states and remains so today,” Garcia wrote in his opinion. “However, any state law involving marriage or any other protected interest must comply with the United States Constitution.”
Judge Garcia issued a stay which remains in effect while the state appeals to the Fifth Circuit, with the showdown now scheduled for the new year.
According to the San Antonio Express-News, “Texas gay marriage advocates were disappointed with the Monday announcement. The New Orleans-based appeals court had earlier agreed to expedite the hearing, and the appellees hoped oral arguments would be scheduled before the new year.”
Neel Lane, an attorney with Akin and Gump who is representing the two couples, said in an email to the San Antonio Current, “It is impossible to reconcile the court’s order expediting oral argument with this January setting. More disturbing, the court seems in no hurry to address the serious constitutional issues raised by the Texas laws depriving my clients of their rights.”
