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Published: Wednesday, 1/22/2014

Texas gay-marriage ban may be in jeopardy

BY CHUCK LINDELL
AUSTIN AMERICAN-STATESMAN

AUSTIN, Texas — Taking advantage of a newly favorable legal climate, gay-marriage advocates have taken their fight to federal courts in Texas and at least 16 other states, winning recent rulings in Oklahoma and Utah that could spell trouble for the Lone Star State’s ban on same-sex spouses.

Gay couples have filed three federal lawsuits in Austin and San Antonio asking judges to void the Texas law and constitutional amendment limiting marriage to opposite-sex couples.

Making the same arguments that prevailed in courtrooms in Republican-dominated Oklahoma and Utah, the lawsuits claim the ban on same-sex marriage subjects gay couples to unequal treatment in violation of the U.S. Constitution.

’’Texas stigmatizes same-sex couples, as well as their children and families, and denies them the same dignity, respect and stature afforded officially recognized heterosexual family relationships,” said a lawsuit filed in Austin by two women who hope to marry and two men who want Texas to recognize their out-of-state marriage. Both couples live in Austin.

That lawsuit and another filed in Austin by two Fort Worth-area men are still in the early stages.

A San Antonio challenge is further along, with a Feb. 12 hearing set on a request for an injunction barring Texas from enforcing its gay-marriage ban.

Like the legal challenges in Oklahoma and Utah, the Texas lawsuits employ language taken from last summer’s U.S. Supreme Court ruling that overturned the federal Defense of Marriage Act, enacted in 1996 to limit marriage, under federal law, to the union of one man and one woman.

The lawsuits:
-- Two couples, Cleopatra De Leon and Nicole Dimetman of Austin, and Vic Holmes and Mark Phariss of Plano, seek an injunction barring Texas from enforcing its ban on same-sex marriage. The suit was filed in San Antonio, where a hearing is set for Feb. 12.
-- Two Austin couples -- Shannon and Catherine Zahrn, who want to get married, and Alexius Augustine and Andrew Simpson, who were married in Maine -- filed suit in Austin to overturn the state ban. Their lawsuit seeks class-action status on behalf of all gays and lesbians in Texas.
-- Two Fort Worth-area men filed suit in Austin arguing that the state ban on same-sex marriage is without valid governmental objective. Christopher McNosky and Sven Stricker are acting without lawyers.

The high court’s 5-4 decision in U.S. v. Windsor was a “game changer,” shifting overnight the legal ground beneath gay-marriage bans, said Jody Scheske, a lawyer for the two Austin couples who sued.

Writing for the Windsor majority, Justice Anthony Kennedy said the law, known as DOMA, violated the core constitutional principle that people are entitled to equal protection under the law.

DOMA’s main purpose was to demean and stigmatize homosexuals, relegating them to second-class status and humiliating the children they are raising, Kennedy wrote, concluding that there can be no legitimate government purpose for a law intended to “disparage and to injure.”

Though Kennedy said his opinion applied only to federal recognition of same-sex marriages performed in the 17 states that allow the practice, Justice Antonin Scalia was having none of it, issuing a scathing dissent that warned -- correctly, it turns out -- that the ruling would lead to inevitable attacks on similar state laws.

’’By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote.

Vigorous defense promised

Last month in Utah and last week in Oklahoma, federal judges acting on those predicted lawsuits overturned state bans based on the principles stated in Windsor. A judge in Ohio also relied on Windsor to force that state to recognize out-of-state same-sex marriages on death certificates.

’’Once you get married lawfully in one state, another state cannot summarily take your marriage away,” U.S. District Judge Timothy Black ruled in the Ohio case last month, adding that, like the federal government, states cannot discriminate “simply because the majority of voters don’t like homosexuality.”

The Utah and Oklahoma rulings were placed on hold while those states appeal. Ohio officials appealed Black’s ruling last week.

In Texas, Attorney General Greg Abbott has vowed to vigorously defend the state’s ban on same-sex marriage, passed into law with strong House and Senate majorities in 2003, followed in 2005 by a constitutional amendment approved by 76 percent of voters.

In briefs to San Antonio federal Judge Orlando Garcia, Abbott argued that the Windsor decision affirmed a state’s authority to recognize same-sex marriage through the democratic process. That power is meaningless unless the same authority applies to states that decide to recognize only “traditional marriages” through the same process, he wrote.

’’Plaintiffs argue that the right to marry includes the right to define marriage as they see fit. That is wrong,” Abbott told the court.

Texas has always defined marriage as the union of one man and one woman, and the couples who sued cannot prove that same-sex marriage, a relatively recent concept, is a fundamental constitutional right, Abbott said.

Moreover, Texas has an interest in promoting “responsible procreation and child rearing,” he wrote, adding that traditional marriage increases the likelihood that children are raised in a “stable and enduring family unit.”

Earlier this month, Abbott asked U.S. District Judge Sam Sparks of Austin to add the San Antonio lawsuit to two challenges in his court, noting that the challenges make similar arguments. Sparks declined, saying in a Jan. 9 hearing that he didn’t have power over another judge’s docket.

Abbott next asked the San Antonio judge to shift his case to Sparks’ court. The couples who sued opposed the request, suggesting in a legal brief that Abbott appeared to be forum shopping after Sparks, during the Jan. 9 hearing, made statements about the difficult burden of proof awaiting the gay couples.

Garcia hasn’t yet ruled on Abbott’s request.

 

Momentum building

Outside of court, opponents of same-sex marriage aren’t giving up.

This month, U.S. Rep. Randy Weber -- a Republican whose coastal district is centered on Galveston -- introduced a bill requiring the federal government to recognize only marriages that are valid in the state in which the couple lives. The 27 Republicans who signed on include two from Central Texas: John Carter of Round Rock and Bill Flores, whose district includes North Austin, Waco and Bryan.

In Indiana, the Legislature is debating a constitutional ban on same-sex marriage. Currently, 29 states have similar constitutional amendments, while four others ban the practice by law.

Momentum, however, appears to be shifting toward allowing same-sex marriage, said Cary Franklin, a University of Texas assistant law professor.

The main driver, Franklin said, has been an “unbelievable shift in public attitude, particularly when you look at young people, who are overwhelmingly in favor of same-sex marriage.”

A 2013 Gallup Poll, for example, found 53 percent of Americans favored allowing same-sex marriage, up from 27 percent in 1996. Support jumped to 70 percent for those aged 18 to 29.

With the Windsor decision’s arrival, Franklin said, “the handwriting is on the wall.”

’’Kennedy talked about marriage as something that was very important for same-sex couples -- for their standing in the community, for their esteem -- and he talked about the harm (a ban) does to their children. All of those ideas make it very hard to say that it’s OK to do that in (states),” Franklin said.

’’All these forces act together to suggest that we’ll see change coming a lot sooner than a lot of people expect,” she said.

Attitudes have been slower to shift in Texas, where opponents of gay marriage still outnumber supporters 56 to 35 percent, according to a 2012 Pew Research Center poll.

The Texas attorney general’s office doesn’t believe same-sex marriage is inevitable -- not if judges adhere to the principle of exercising restraint when asked to expand a constitutional right. Otherwise, Abbott warned in briefs, judges risk replacing public debate and legislative action with personal policy preferences.

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