A federal judge, saying he was complying with the U.S. Constitution and not trying to defy the people of Texas, struck down the state’s ban on gay marriage Wednesday but left it in place pending a ruling by an appeals court later this year.
Judge Orlando Garcia issued his ruling in Austin in response to a suit by two gay couples. They challenged the state’s constitutional amendment, which had been approved by 76% of voters in 2005, and a 2003 law banning gay marriage.
Garcia’s decision rejected the argument by the Texas attorney general’s office that each state has the right to define marriage in the traditions of its citizens. Texas also argued that traditional marriage best supports the state’s interest in procreation and child rearing.
“After careful consideration, and applying the law as it must, this court holds that Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process,” Garcia wrote in a 48-page opinion. “Texas’ current marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason.”
He continued that regulation of marriage “has traditionally been the province of the states and remains so today,” but “any state law involving marriage or any other protected interest must comply with the United States Constitution.”
“Today’s court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent,” said Garcia, who was nominated to the federal bench by President Clinton in 1994. “Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution.”
Under federal court rules, a judge may suspend a law if he or she believes the plaintiffs have a strong case and will suffer if the law is enforced.
Gov. Rick Perry, a Republican, indicated the state would appeal. He issued a statement that Texas would “continue to fight for the rights of Texans to self-determine the laws of our state.”
“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.
Nicole Dimetman and Cleopatra De Leon, one of the couples who filed suit, were wed in Massachusetts and want Texas to recognize their marriage. The other plaintiffs, Mark Phariss and Vic Holmes, have been together 17 years and want to get married at home in Texas.
“We are extremely happy — happy beyond words — with Judge Garcia’s decision,” Phariss and Holmes said Wednesday in a joint statement with Dimetman and De Leon, the San Antonio Express-Newsreported. “Today, Judge Garcia affirmed that the Equal Protection Clause applies to all Texans. We are delighted by that decision, and we expect that, if appealed, it will be upheld.”
Dimetman and De Leon called the ruling “a great step towards justice for our family.”
“Ultimately, the repeal of Texas’ ban will mean that our son will never know how this denial of equal protections demeaned our family and belittled his parents’ relationship,” they said. “We look forward to the day when, surrounded by friends and family, we can renew our vows in our home state of Texas.”
Michael Diviesti, state lead organizer of GetEQUAL TX, a gay rights group, said, “It’s a sure sign that things are changing in Texas for the better. We’ve got a few more steps to go on the marriage front, but I think we’re all pretty prepared to keep up the fight.”
He added, “I wish we could start planning our weddings right now. Unfortunately, we can’t, but now there is an end in sight. A lot of us were thinking it would take five to 10 years before we could get married in our home states. But seeing this happen in our state shows us that we’re not as far away from that as we thought we were.”
Cece Cox, CEO of Resource Center Dallas, a community services agency for lesbian, gay, bisexual and transgender people, said, “Even though today nothing is exactly different, there are a lot of conversations that are going to be had about discrimination. And that’s where a lot of progress is made — not just in the courts.”
“This ruling by an unelected federal judge is the most egregious form of judicial activism in our generation,” said Jonathan Saenz, president of Texas Values, an organization that promotes religious liberty. “This is only the beginning of an epic battle that the Texas people will ultimately win in the name of the only true and lawful definition of marriage: one man and one woman.”
Federal judges also struck down bans on gay marriage in Utah, Oklahoma and Virginia, but the Texas ruling — if upheld on appeal — would have stronger reverberations coming from the nation’s largest, most influential red state.
Lawsuits are pending in at least 20 other states that ban gay marriage, including Michigan, where a federal judge is currently hearing arguments about a constitutional amendment that limits marriage to heterosexuals.
Seventeen states and the District of Columbia allow same-sex marriages.
Wednesday evening, Arizona Gov. Jan Brewer vetoed a Republican-backed measure that would have allowed individuals and businesses to invoke their religious beliefs as a defense against claims of discrimination against gays.
Senate Bill 1062, which passed both houses of the Legislature last week, came under a withering assault from major corporations, organizations, politicians, professional sports and individuals.
Three of Brewer’s fellow Republicans who voted for the measure also urged her to not sign the bill into law, saying that although its intent was “to create a shield for all citizens’ religious liberties, the bill has been mischaracterized by its opponents as a sword for religious intolerance.”
How a Single Gay Juror Brought Down Nevada’s Same-Sex Marriage Ban
In 2011, attorneys for Abbott Laboratories dismissed a prospective juror prior to a blockbuster trial on account of his sexual orientation. Abbott’s attorneys were convinced that the juror, an openly gay man, would be prejudiced against Abbott, which had been accused of inflating the price of an HIV drug. The company’s legal opponents cried foul and litigated the dismissal. And now, thanks to that juror, Nevada just gave up on its same-sex marriage ban.
How did a complex case about peremptory jury strikes lead a Republican governor to give up on his state’s constitutional ban against gay marriage? The legal path is rocky and strange—and also fairly amusing. Here’s a sketch of the chain of events.
While Abbott prepared to litigate its dismissal of a gay juror last summer, the Supreme Court issued a case you may have heard of: U.S. v. Windsor. In Windsor, the court overturned the Defense of Marriage Act, holding that it “violates basic due process and equal protection principles” of the Constitution. Although the court irritatingly refused to clarify its precise rationale, many commentators believed that the justices had granted gays heightened constitutional protections, similar to the type that women are afforded.
Before Abbott’s gay juror case went to trial, the 9th Circuit asked the company’s attorneys to explain Windsor’s effect on its arguments. This was bad news for Abbott. Any reasonable observer could see that Windsor changed the game, elevating legal protections for gays to an unprecedented extent. The Supreme Court has already ruled that blacks and women cannot be pre-emptively struck from a jury on the basis of their race or gender, as both jurors and defendants must be protected from racism, sexism, and “historical prejudice.” Shouldn’t the same logic now apply to gay jurors, in order to shield them from similar bigotry and “historical prejudice”?
The 9th Circuit said yes—and then some. In a profoundly bold and trailblazing opinion, Judge Stephen Reinhardt waved aside Abbott’s arguments, holding that allowing strikes based on “preconceived notions of the identities, preferences, and biases” of gay people would perpetuate the “history of exclusion of gays and lesbians from democratic institutions.” And he didn’t stop there: This exclusion, Reinhardt wrote, was unacceptable in light of Windsor because:
In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. … In short, Windsor requires heightened scrutiny. These sentences did nothing less than herald a new era of gay rights. For decades, gay activists have strived for this precise constitutional protection; now the 9th Circuit had afforded it to them. No longer, the 9th Circuit declared, can gays be denied basic rights based on some vague notion of traditional values. Instead, a state must have a compelling interest in discriminating against gays—and because no such interest exists, they must be afforded the same rights as everybody else.
The ruling only applied to those states within the 9th Circuit’s jurisdiction, including—you guessed it—Nevada. When the Abbott opinion was handed down, Nevada’s attorney general was already struggling to defend the state’s marriage ban; following Windsor, she asked for a series of extensions in light of the changing legal landscape. A federal judge had upheld the ban in late 2012, but that was during the dark days of DOMA; now, in the shadow of Windsor, the state’s argument that it must discriminate against gays in order to “preserve traditional marriage” was beginning to look a little flimsy.
And now it has toppled completely. Attorney General Catherine Cortez Masto filed a motion with the 9th Circuit on Monday conceding that, following the gay juror ruling, “the state has determined that its arguments grounded upon equal protection and due process are no longer sustainable.” Brian Sandoval, the state’s Republican governor, agrees, admitting that “it has become clear that this case is no longer defensible in court.” And just like that, the always ridiculous rationale for banning gay marriage fell away, revealing the silly, nonsensical bigotry that has always lurked underneath.
It’s likely that a group of Republican legislators will step in to defend that law in place of the attorney general. But without the support of even the Republican governor, they’ll be fighting an uphill battle. With Windsor, the Supreme Court gave judges across America permission to knock down legal barriers to gay equality. The 9th Circuit took the justices up on their offer, and in doing so, it may have triggered a chain reaction. Arizona, Idaho, Montana, Oregon, and Alaska all fall within the 9th Circuit—and all ban gay marriage. For gay couples hoping to get married in those states, today should mark the start of a race to the courthouse.
this might be because I’m a family law lawyer and also an old crone who remembers when marriage equality wasn’t a thing (as in, marriage equality only became nation-wide two months before I went to law school), but I have Strong Feelings about the right to marry and all the legal benefits that come with it
like I’m all for living in sin until someone says they don’t want to get married because it’s ~too permanent~ and in the same breath start talking about having kids or buying a house with their significant other. then I turn into a 90-year-old passive-aggressive church grandma who keeps pointedly asking when the wedding is. “yes, a divorce is very sad and stressful, but so is BEING HOMELESS BECAUSE YOU’RE NOT ENTITLED TO EQUITABLE DISTRIBUTION OF MARITAL PROPERTY, CAROLINE!”
“oh, he thinks a piece of paper shouldn’t define your relationship? ASK HIM HOW HE FEELS ABOUT BEING ON YOUR BABY’S BIRTH CERTIFICATE, PATRICIA.”
“oh, sure, it’s all fun and games until your estranged parents are making medical decisions for you and inheriting all your property, TIMOTHY.”
so, I’ve gotten this question and similar ones before, and I want to use it to go into what marriage actually is.
so, in law, there are a couple of legal assumptions made when someone is a close family member, like a parent. the assumptions are that this person knows you well enough to make decisions on your behalf in an emergency, supports or is supported by you financially, and, most importantly, that they are emotionally significant to you in a way that makes them different from a total stranger or a good friend. immigration law, for example, prioritizes families over people immigrating for jobs alone, because not getting a job doesn’t have the same emotional weight as never seeing your mom again.
the difference is that you don’t get to choose your family (outside of adoption and, uh, legally that’s not a bilateral decision). you do get to choose your spouse. the fact that you chose them is why they get priority for things like inheritance and immigration, even over your parents or your siblings or your grandma.
how does the government know that this particular person is someone you want to have as part of your family? you fill out a form and you tell them.
what happens if you don’t want them in your family anymore, and don’t want those assumptions made about them? you fill out a different form and you tell the government that.
the thing I think that’s hard for people to wrap their heads around – whether you’re a starry-eyed romantic or a pragmatic bitch like me – is that marriage isn’t an announcement of how much you love someone. that’s what a facebook status update is for. you do not need to be in love, or sexually/romantically monogamous, or be religious, or any of the other things people associate with marriage, in order to bemarried.
it’s a legal decision. it is choosing to get certain benefits (like taxes, because it’s assumed you’re financially supporting each other) in exchange for certain responsibilities (because it’s assumed you’re supporting each other, it stops mattering exactly who bought what after you got married, so divorce splits the whole pool of stuff even if one person bought like 75% of it).
you don’t get the one without the other, and you don’t get either if you don’t affirmatively say that’s what you want to have happen. it doesn’t happen automatically, or in every romantic relationship no matter how serious, because the choice is the point.
and, to be clear: if you do not want, or do not care about, the legal rights and responsibilities of being married, you should not get married. it’s a fucking legal contract that has serious legal implications! it’s not something you should be doing for funsies!
tl;dr: if you want all the shit that comes with a marriage, good and bad, you need to tell the government that’s what you want. if you don’t want it, then you don’t need to do it, but you need to also be aware of what you’re potentially losing (in exchange for what you’re keeping). that should be an informed decision, not one you make for emotional reasons like “I just want everyone to know I’m only having sex with this person forever” or “our love is so pure it transcends legal boundaries.”
Is there any option other than marriage for telling the government you want this person to be part of your family? Like, can you draw up some kind of homebrew contract?
Short answer: No. If there was, queer people would have done it already.
Long answer: That’s a little like asking “can you become a citizen via contract rather than going through the immigration and naturalization process?” Marriage is a legal status: you either are or you aren’t. Can you cobble together very specific stuff, like advanced healthcare directives and wills and whatnot? Yes, absolutely. But anything that requires you to be legally married as a status cannot be contracted away: you can’t file taxes jointly or sponsor someone for a green card or get someone’s Social Security benefits if they die if you’re not married to that person.
Now, to be clear: some things that often require marriage do not always require marriage. For example, usually you need to be married to have someone unrelated to you be on your health insurance, but my job’s specific health insurance plan allows coverage for domestic partners, which they define as a single person who has cohabitated with you for six months or more and is in a committed relationship with you. So even though my fiancé and I are not married yet, he’s been on my health insurance for the past year and a half, because we hit the six month mark of living together right around when I had to re-enroll in my health insurance for the year.
But if we’d gotten married sooner, he’d have been able to get on my health insurance right away (getting married is a qualifying event that lets someone get on a health insurance plan outside of the enrollment period), but since he’s just a cohabitating partner, we had to wait six months for him to get on my insurance. And if he’d moved in with me a month later, we’d have to wait a whole year before he could enroll with me on my health insurance. Even though it’s allowed, it still doesn’t have the same standing as a marriage.
I guess technically adult adoption is an option, in that it is what queer people did for a while in lieu of marriage, but it’s a bad idea for a lot of reasons (not least of which being that you can divorce a spouse but you can’t undo an adoption).
this, THIS is why QPR make me so fucking nervous. i’m not trying to shit on your beautiful poly aroace love affair, i’m asking you HOW WILL THIS RELATIONSHIP HOLD UP IN COURT. cause, news flash: it won’t.
if you have shared bank accounts and a house and a kid with someone who isn’t married to you, they can wipe you out – legally speaking – and you have no recourse. none. you will never see your kid again, unless you’re lucky and contributed half their DNA.
if they have a car accident and end up in hospital, you don’t have a legal right to see them. if they’re in a coma, their parents can pull the plug and adopt that child and you can do nothing.
queers wanted marriage equality not to Be Like Teh Hets, but because it is the most legal protection you can ever have against that bad stuff that comes (and it comes for everyone).
if you don’t have that stuff, if you’re relying on your partners to do the right thing forever and be perfect people and never have a business collapse or a messy family situation or an accident or even to get sick … you’re being really, reallynaïve.
Pre-legal-gay-marriage, I saw this happen. I was on a parenting board and one day a woman we’d posted with for years told us her partner and one of their children had died in a car accident. And because she wasn’t the biological parent of the surviving child – the child she’d been a parent to since conception – her ex’s parents took custody and took the child away and kept her from seeing that child. Ever.
Because here’s the thing: children are not property. Specifically, in estate law, children are not, and cannot be “Real Property.” You cannot bequeath them like furniture, books, and bank accounts.
“But my will states who I want as guardian!” You say.
Welp. That statement is, in law, only a (strong) suggestion. A judge still still have to rule on guardianship of your minor child, and you cannot, from the grave, dictate where they end up.
Again:Children are not real property. If you are not their biological or legal parent, the state can remove them from your custody and hand them to someone more closely related, or not related at all but merely less gay, less queer, less “inappropriate” by your state’s legal standards.
The woman I knew back then was on good term with her not-quite-in-laws. Or thought she was. Because as soon as her partner died, their tune changed 100%, they found anti-gay legal support, and they took that woman’s child from her. Forever.
That’s not my only “my outlaws are great and fine with us and its okay we’re not legally married” story, but it’s probably the most heartbreaking. Though the image of a man who has just lost his partner of 25 years watching his ex-outlaws take ½ of his chairs, ½ of his pillows, ½ of his sheets, ½ of his napkins, ½ of his towels, ½ of his dishes, ½ of his books….. is pretty fucking close. After they made him sit behind “the family” at his partner’s funeral.
My mother was a lifelong Republican, a very conservative Catholic. The thing that pushed her over on legalizing gay marriage was stories about people being in the hospital and their partner of 20 years not being allowed to see them, because they weren’t legally married. She thought that was wrong and unfair.
Also a reminder “get married” does not mean “have a wedding.” You can file the paperwork and get married in a courthouse or office. There doesn’t even need to be a ceremony, you just have to sign some papers. (Bonus: you get access to the legal privileges of marriage as well as the protections, AND you get to stick it to the billion dollar “wedding industry” that preys on us all.)
