Federal judge issues no decision in hearing on Texas marriage ban

Posted on 12 Feb 2014 at 1:15pm
Plano couple Vic Holmes, far left, and Mark Phariss and Austin couple Cleopatra DeLeon and Nicole Dimetman in court Wednesday. (Courtesy photo)

Plano couple Vic Holmes, far left, and Mark Phariss and Austin couple Cleopatra DeLeon and Nicole Dimetman in court Wednesday. (Photo courtesy of Randy Bear)

SAN ANTONIO — Saying he had listened to both sides of the argument, San Antonio Federal District Judge Orlando Garcia told a crowded courtroom on Wednesday  he will soon make a decision in the case of two couples who are seeking a preliminary injunction to bar Texas from enforcing its same-sex marriage ban.

Mark Phariss and his partner Vic Holmes of Plano, along with Cleopatra DeLeon and Nicole Dimetman from Austin, filed their original federal lawsuit on Oct. 28 in San Antonio challenging the state’s marriage ban.

The defendants named in the case are Governor Rick Perry, Attorney General Greg Abbot, Bexar County Clerk Gerard Rickhoff and Commissioner of State Health Services David Lakey.

The injunction, dated Nov. 22 and submitted by the the law firm of Akin Gump Strauss Hauer & Feld, LLP, states:

“Plaintiffs respectfully request that the Court issue an order preliminarily enjoining Defendants from enforcing any constitutional or statutory provisions, including article I, section 32 of the Texas Constitution and Texas Family Code §§ 2.001 and 6.204, that prevent Plaintiffs Phariss and Holmes from marrying on the basis that they are of the same sex, or prevents the State from recognizing Plaintiffs’ De Leon and Dimetman’s marriage on the basis that they are of the same sex. Plaintiffs further request that the Court enter a preliminary injunction commanding Defendant Rickhoff to issue a marriage license to Plaintiffs Phariss and Holmes.”

At the Wednesday hearing, attorneys for the plaintiffs said there are “hundreds of thousands” of people affected by the state ban.

Attorney Neel Lane, who represents the two couples, said that by not having their unions recognized by the state, same sex couples lose such rights as community property, intestate survivorship, parental rights, health care decisions, and spousal and child support after divorce.

“We’re not seeking to rewrite any Texas law. We’re seeking to enforce the Constitution that protects everyone,” Lane said.

To get the preliminary injunction, the two couples must convince the judge they have a good chance of winning their cases when it is litigated and that by keeping the ban in place their relationships are being harmed.

Assistant Texas Solicitor General Michael Murphy urged the judge to deny the injunction saying, “The right to marry has never included the right to same-sex marriage. Plaintiffs’ constitutional claims are not likely to succeed on the merits, as they are foreclosed by direct, binding Supreme Court precedent and by application of equal-protection and due-process standards.”

“As we all know, no matter how I decide this, this matter is going to be appealed in time,” Garcia said. He offered no time frame as to when his decision would be made public.

Sam Sanchez is the publisher of QSanAntonio.com.

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