Two same-sex couples have asked U.S. District Judge Orlando Garcia of San Antonio to allow gay marriages to begin taking place immediately in Texas.
On Monday, couples Mark Phariss and Victor Holmes of Plano and Nicole Dimetman and Cleopatra De Leon asked Garcia to lift a stay he imposed this winter on his own ruling that Texas’ gay marriage ban is unconstitutional.
In February, Garcia said the state’s prohibition violates the U.S. Constitution’s guarantees of equal protection and due process. The district judge, though, held his ruling in abeyance so higher courts could rule in similar cases from other states that were further along.
“The court should immediately lift the stay because the Supreme Court’s actions following entry of the stay no longer support its continuance,” Neel Lane, the two couples’ lawyer, wrote in his motion urging Garcia to lift the stay.
Lane pointed out that last month, the Supreme Court declined to hear various states’ appeals that it rescue their gay-marriage bans from adverse lower court rulings. The Supreme Court’s refusal “dissolved the stays” — or put into effect — the edicts overturning prohibitions on same-sex marriage in states in the 4th Circuit (Richmond), 7th Circuit (Chicago) and 10th Circuit (Denver), he said. Since then, the Supreme Court lifted stays on similar, lower-court rulings in Kansas and South Carolina, he noted.
While Lane conceded that the justices’ refusals to hear appeals “do not have legal significance,” he argued that “the constitutional environment” in which Garcia acted this winter has “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.”
I found a copy of the motion here. As the Chron story points out, the stay in this case was originally put in place because there was a stay in place for the Utah ruling – the one that started all these state laws falling – pending review by the Tenth Circuit Court of Appeals. That review has happened, the original ruling that tossed Utah’s law has been affirmed, and as the motion states the Supreme Court refused to take the state’s appeal, thus allowing the stay to expire. Given all that, why must Texas’ ruling be stayed?
That’s the question the motion asks, in addition to pointing out all the harms that these plaintiffs and other same-sex couples whose legal marriages are not recognized by Texas continue to suffer. My non-lawyer’s opinion is that Judge Garcia will be reluctant to lift the stay, on the perfectly reasonable grounds that the Fifth Circuit may put a turd in the punch bowl and overturn his ruling. That would then put all these couples right back into limbo, with some extra chaos mixed in. Of course, I thought the original lawsuit had no chance of succeeding, so what do I know? I’m sure Greg Abbott will file a response, though I have no idea what the time frame for that might be. Regardless, I look forward to the ruling and I wish them all the best.