by Mary Tuma
The couples suing Texas for marriage equality outside a federal court in San Antonio. Photo by Mary Tuma.
Nicole Dimetman and her partner Cleopatra De Leon and Mike Phariss and partner Victor Holmes — extensively profiled in the Current’s Jan. 29 cover story— are fighting for their right to marry or to be recognized as a lawful married couple, as in the case of Dimetman and De Leon, who were forced to wed in Massachusetts hundreds of miles from their home state.
After hearing testimony from counsel with the attorney general’s office and from Akin Gump, the SA-based law firm representing the couples, presiding U.S. District Judge Orlando Garcia, a Clinton appointee, says he’ll take his time deliberating and give thoughtful consideration to a final ruling, with the caveat that no matter what his choice, the ruling will be inevitably appealed and that a final decision on same-sex marriage at the state level for (possibly) Texas and pending cases across the nation ultimately await final resolution “in time, or perhaps soon” from the U.S. Supreme Court. Quoting friend Austin-based U.S. District Judge Sam Sparks, Garcia said, “Ultimately, a group of five people will decide this case and I’m not one of those five.”
In the meantime, Garcia will digest the arguments made by the couple’s lawyers, Barry Chasnoff and Neel Lane as well as from Assistant Texas Solicitor General Michael Murphy.
Chasnoff and Lane argued the ban is unconstitutional under the equal protection clause and that the couples face financial, legal and emotional irreparable harm as a result. Chasnoff called the law “abhorrent” and argued it perpetuates the idea of homosexuality as a form of impropriety. The couples’ attorney also took pointed shots at the state for lacking rebuttal evidence when it comes to harm. Attorneys even thanked the AG’s office for implicitly conceding the plaintiffs were right by not providing anything to discredit them, a point the state later denied. (But still provided no refuting evidence regarding harm.) Lane and Chasnoff also said simply maintaining the status quo based on traditional practices just doesn’t cut it as rational basis to an argument (see: maintaining race-based segregation).
"My clients shouldn't be denied the right to marry the person they love because they have an immutable sexual orientation," said Chasnoff.
On the other side, the state said same-sex marriage shouldn’t be a constitutional issue, relegating it to a divisive and political issue instead. They criticized the case for attempting to “redefine” marriage and called the potential injunction a “drastic remedy.” Same-sex marriage is not rooted in history, said Murphy, in fact its legality is “more recent than Facebook.” He countered the notion the LGBT community is an oppressed and marginalized group because gay rights political wins around the nation have been “staggering.” Murphy made the point to reinforce the state leadership’s socially conservative idea of marriage as a means of procreation, saying the purpose of the law is not to exclude gay couples but to promote “responsible procreation" in a "safe and stable environment."
The couples were prompted to file suit in part by the U.S. Supreme Court decision in Windsor, which struck key parts of the Defense Against Marriage Act (DOMA) and afforded federal protections for same-sex couples. The historic ruling spurred a chain of similar same-sex marriage suits across the country, including conservative states like Utah and Oklahoma. To date, 17 states as well as Washington, D.C. have legalized gay marriage, and plaintiffs from 21 states are currently challenging their state laws.
A timetable for Garcia's ruling has not been set. Lawyers with the couples say they were satisfied with the hearing and don't have a sense of how Garcia will rule.