Appeals Court Will Hear Texas Same-Sex Marriage Case in January

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Update Tuesday, October 28 at 2:52 p.m. This post has been updated with comments from Nicole Dimetman, who is one of four plaintiffs challenging Texas' same-sex marriage ban.

The U.S. Fifth Circuit Court of Appeals has tentatively put Texas’ same-sex marriage case on the calendar for the week of January 5, 2015.

Lawyers on both sides of the case will present oral arguments before a three-judge panel, though we won’t know which judges will hear the case until the week before. The case landed in the 5th Circuit after Attorney General Greg Abbott appealed a San Antonio-based federal district judge’s ruling that the ban is unconstitutional and violated the 14th Amendment rights of gay couples in Texas.

Lawyers representing the plaintiffs in the case challenging Texas’ 2005 ban on same-sex marriage asked the federal appeals court for an expedited hearing schedule because one of the plaintiffs, Nicole Dimetman, is pregnant. She and her partner Cleopatra de Leon are expecting their second child in March 2015. Dimetman and her family were hoping for a November hearing so a decision could come down before the baby arrives.

"We were disappointed and surprised to learn that it wasn’t going to be scheduled until the beginning of January...at that point I'm going to be almost seven months pregnant and it’s going to be harder to travel," she told the Current

Neel Lane, an attorney with Akin and Gump representing the Dimetman, De Leon, and another couple in the lawsuit, said that because Dimetman will be in her third trimester by the time oral arguments take place, she likely won’t be able to travel to New Orleans where the court is based, “which is a real shame,” Lane wrote.

“It is impossible to reconcile the court's order expediting oral argument with this January setting,” he wrote in an email to the Current. “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.”

Without Texas’ recognition of their marriage, which was performed in Massachusetts, De Leon will not be recognized as their child’s parent without going through the formal adoption process. 

“What should typically be a joyous, albeit anxious time, in any marriage will instead be fraught with uncertainty and insecurity that no married heterosexual couple must endure,” lawyers wrote on behalf of Dimetman and De Leon in their formal application submitted earlier this month.

Dimetman also worries that if a decision doesn't come before her March due date, De Leon won't be recognized as the child's legal parent and therefore can't make decisions should a medical emergency occur.

"We’re not seen as a family in that hospital, there’s nothing we can do to protect our family while I’m delivering," she said. "If anything happens to me or if I’m temporarily incapacitated, (Cleopatra) is not going to be seen as a parent as that child." 

Abbott, supported by dozens of Republican legislators including lieutenant governor candidate Dan Patrick and attorney general candidate Ken Paxton, argues that the state has a vested interest in promoting procreation and therefore must keep fighting the challenge to Texas’ same-sex marriage ban. Nothing like a gaggle of men seeing themselves as pivotal in our sex lives, folks.

The Fifth Circuit also has jurisdiction over the lawsuit challenging Louisiana’s same-sex marriage ban, and oral arguments for that case have been tentatively scheduled for the week as the Texas case.

Earlier this month, the Supreme Court announced it would not review cases in which federal appeals courts overturned state same-sex marriage bans, clearing the way for at least a dozen states to begin recognizing same-sex marriages.

Couples in Texas weren’t directly affected by the news, but it does elevate the importance of both Texas' and Louisiana's cases. Legal experts predict that judges in the Fifth and Sixth Circuit Courts of Appeals could actually uphold a state's ban on same-sex marriage, contrary to other federal appeals courts' decisions so far that overturn them. A conflicting opinion among the federal appeals courts could send one of the cases up to the high court. 

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