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Same sex marriage plaintiffs ask Fifth Circuit to lift the stay

They’ve got a strong case, based on recent SCOTUS action.


Attorneys for two gay couples are asking a federal appeals court to allow same-sex marriages to begin in Texas immediately.

In a motion filed Thursday, attorneys for the couples asked the 5th U.S. Circuit Court of Appeals to lift a district judge’s stay of his 2014 decision striking down Texas’ marriage ban.

If the 5th Circuit agrees to lift the stay, it would clear the way for same-sex marriages to begin in Texas. If the 5th Circuit doesn’t lift the stay for all same-sex couples, the motion asks that it be lifted for the limited purpose of establishing the parental rights of plaintiff Cleopatra DeLeon, whose wife, Nicole Dimetman, is expecting a child in March.

The motion cites the U.S. Supreme Court’s refusal to halt same-sex marriages in both Alabama and Florida, after federal district judges struck down bans in those states. The high court will hear appeals from four states where same-sex marriage bans were upheld in April.

“The Supreme Court’s actions indicate that the stay of the District Court’s decision is no longer necessary,” the motion states. “The District Court expressly found that the denial of the fundamental right to marry causes irreparable harm. Despite this, Plaintiffs continue to suffer irreparable harm—only now the potential consequences are graver. As discussed further below, Plaintiffs De Leon and Dimetman are expecting a child any day, and the State’s refusal to recognize their marriage risks grave harm both to the Plaintiffs and the child.”

Neel Lane, an attorney for the couples, said in a statement he remains confident the 5th Circuit will rule in favor of marriage equality.

“But same-sex marriages are proceeding across the South and Southwest, while Texas remains the most populous state where gays and lesbians are deprived of that right,” Lane said. “Today we urge the Fifth Circuit to remedy that omission immediately.”

You can see the motion at the link above. At this point, everyone seems to think that the Supreme Court has indicated how it will rule when it hears the same sex marriage case before it. The question is whether the Fifth Circuit thinks so, too. The court appeared to be pointing in the right direction when oral arguments for the appeal of Judge Garcia’s ruling were heard. Judge Garcia himself declined to lift the stay that he had imposed after his ruling last year when he was asked to do so in November, but things have changed since then. I’ll say this much – if the Fifth Circuit does lift the stay, then it’s pretty much game over. It’s almost unthinkable that they would lift the stay, then overturn Judge Garcia’s ruling. I guess they could decide to keep it in place just to ensure that this all plays out till the very end. I don’t think that’s a good reason, but as you know I generally advise keeping one’s expectations low with the Fifth Circuit. We shall see. Trail Blazers and the Trib have more.

On a side note, because I feel like kicking Ted Cruz a little, there’s this.

Even as the U.S. Supreme Court gets ready to decide on a nationwide constitutional right to same-sex marriage, Texas U.S. Sen. Ted Cruz on Tuesday reintroduced a bill that would leave it up to the states.

A potential 2016 GOP presidential candidate, Cruz also announced he will thrust himself into the gay marriage debate again later this year by introducing a constitutional amendment making explicit that marriage is a policy question for the states.

Meanwhile, Cruz, along with 11 other senators, brought back the State Marriage Defense Act, which died in last year’s Democratic-controlled Senate. U.S. Rep. Randy Weber, R-Friendswood, is introducing companion legislation in the House.

“Even though the Supreme Court made clear in United States v. Windsor that the federal government should defer to state ‘choices about who may be married,’ the Obama Administration has disregarded state marriage laws enacted by democratically-elected legislatures to uphold traditional marriage,” Cruz said in a statement.

Cruz’s bill would require that the federal government defer to the laws of the state where a couple resides to determine whether the couple is married for purposes of federal law.

I think I’m going to start taking up a collection to buy Cruz a lifetime supply of pacifiers for himself, because Lord is he the world’s biggest crybaby.

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