Texas gay marriage ban latest to be struck down

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by JASON WHITELY and CHRIS TOMLINSON

Bio | Email | Follow: @jasonwhitely

WFAA and Associated Press

Posted on February 26, 2014 at 11:55 PM

Updated Thursday, Feb 27 at 5:11 AM

AUSTIN — A federal judge declared a same-sex marriage ban in deeply conservative Texas unconstitutional on Wednesday, but will not allow the nation's second-most populous state to enforce the law pending an appeal that will likely go to the U.S. Supreme Court.

Judge Orlando Garcia issued the preliminary injunction after two gay couples challenged a state constitutional amendment and a longstanding law. His ruling is the latest in a tangled web of lawsuits across the country expected to end up in the Supreme Court next year.

"Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution," Garcia wrote. "These Texas laws deny plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex."

A couple dozen gay and lesbian supporters and activists met for a rally Wednesday afternoon on a busy corner in Dallas' Oak Lawn neighborhood.

"Today the federal government has sent you a memo Rick Perry and Greg Abbott. We are here to stay and we are taking our rights back!," said CD Kirven, a lesbian activist, using a megaphone.

One of the two gay couples to file the lawsuit returned home to Dallas Love Field on Wednesday night.

"It's just hard to believe that finally a court said we are equal. That just meant so much to us," said Mark Phariss, plaintiff.

He and Victor Holmes have been together 17 years and filed the suit because they want to get married in Texas.

The court secretly summoned them to San Antonio yesterday for the announcement, Phariss said, where they awaited it in a hotel room nearby.

"We got a text from our lawyer that said we won," he explained, "We were thrilled. We yelled. I think they heard us from the 10th floor down to the receptionists desk."

Judge Garcia said Phariss and Holmes and the other plaintiff couple are likely to win their case and the ban should be lifted, but the judge said he would not enforce his ruling pending one by the 10th Circuit Court of Appeals, which already is hearing two other states' cases. He also will give Texas time to appeal to the 5th Circuit Court of Appeals in New Orleans.

Despite the ruling, Governor Rick Perry promised the state would appeal.

"Texans spoke loud and clear by overwhelmingly voting to define marriage as a union between a man and a woman in our Constitution, and it is not the role of the federal government to overturn the will of our citizens," he said in a statement. "The 10th Amendment guarantees Texas voters the freedom to make these decisions, and this is yet another attempt to achieve via the courts what couldn’t be achieved at the ballot box. We will continue to fight for the rights of Texans to self-determine the laws of our state."

Garcia, appointed by President Bill Clinton, is the first judge in the conservative 5th Circuit to reach such a decision. Texas Attorney General Greg Abbott, who also is the leading Republican candidate to succeed Gov. Rick Perry, promised to appeal the decision to the New Orleans court, as well.

"This is an issue on which there are good, well-meaning people on both sides," Abbott said in a statement. "The U.S. Supreme Court has ruled over and over again that States have the authority to define and regulate marriage."

The ruling is the latest in a series of victories for gay rights activists following similar decisions in Utah, Oklahoma and Virginia. The U.S. Supreme Court put the Utah ruling on hold until the 10th Circuit can consider an appeal, and Garcia said he would respect that order as well.

Phariss and Holmes filed their federal civil rights lawsuit saying Texas' ban unconstitutionally denied them the fundamental right to marry because of their sexual orientation. Cleopatra De Leon and Nicole Dimetman filed a lawsuit saying Texas officials violated their rights by not recognizing their marriage conducted in a state where gay marriage is legal.

"Having been together almost 17 years, we look forward to the day when we can get married and when all gay Texans enjoy equal rights to marry as well," Phariss and Holmes said in a statement.

Dimetman and De Leon said they hope to retake their vows in Texas.

Todd Staples, a candidate for lieutenant governor who drafted the constitutional amendment banning gay marriage, denounced the court's decision.

"I am disappointed that judicial activism is once again trying to trump the will of the people. This ruling is the poster child of the culture war occurring in America today," he said.

Another gay couple has filed a separate lawsuit in federal court in Austin. In that case, two men argue that the ban discriminates against them based on their gender. That case is scheduled for a hearing later this year.

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