Judge Herman

Judge Guy Herman

Less than a week after plaintiffs in the federal lawsuit challenging Texas’ ban on marriage equality asked the Fifth Circuit Court of Appeals to lift the stay on U.S. District Judge Orlando Garcia’s February 2013 ruling striking down the marriage ban, Travis County Probate Judge Guy Herman ruled today (Tuesday, Feb. 17) that the Texas ban is unconstitutional.

Travis County will not, however, begin issuing marriage licenses to same-sex couples, at least not immediately, according to the Austin American-Statesman.

Herman’s ruling came as part of an estate fight in which Austin resident Sonemaly Phrasavath is seeking to have her eight-year relationship to Stella Powell designated as a common-law marriage. Powell died last summer of colon cancer.

Travis County Clerk Dana DeBeauvoir, who has said previously that she is ready to begin issuing marriage licenses to same-sex couples as soon as the courts will allow, said today she will meet with Herman and county lawyers to “find out if there is anything I can do. Right now, I think it’s no, but we are checking.” DeBeauvoir told the Austin newspaper.

The lawyer for Powell’s siblings, who opposed Phrasavath’s claim, said they have made no decision on whether to appeal Herman’s ruling.

Herman ruled after an hour-long hearing in which Phrasavath challenged the constitutionality of Texas ban on marriage equality as a first step toward establishing her relationship as a common-law marriage. Phrasavath and Powell had lived together since Phrasavath proposed in 2007. The two were joined in 2008 in a ceremony performed by a Zen priest in Driftwood southwest of Austin. The ceremony was, of course, not legally recognized.

Powell died without a valid will in June, eight months after she was diagnosed with colon cancer.

In the federal case, the state of Texas appealed Orlando’s ruling to the Fifth Circuit Court, which heard oral arguments in the case — and one case from Mississippi and one from Louisiana — on Jan. 9 in New Orleans, but has yet to rule in the case. Last week, the plaintiffs in the marriage case — Plano couple Mark Phariss and Vic Holmes and Austin couple Cleo DeLeon and Nicole Dimmetman — asked the Fifth Circuit Court to lift the stay, after marriage began in Alabama when the U.S. Supreme Court refused to extend the stay on lower court rulings overturning the marriage equality ban there.

The Supreme Court also refused to extend the stay on a lower court ruling in Florida in late December, allowing same-sex couples to begin legally marrying there on Jan. 5.

The Supreme Court has agreed to hear appeals in four cases from the Sixth Circuit Court of Appeals, the only federal appellate court to rule against marriage equality since the Supreme Court’s June 2013 ruling in United States v Windsor, which overturned portions of the Defense of Marriage Act. The Supreme Court is expected to hear oral arguments on those cases sometime in April, and will likely issue a ruling in June. That ruling is widely expected to favor marriage equality.