Austin couple joins as co-plaintiffs in federal case Lambda Legal says could be the case to bring marriage equality to the Lone Star State
PLANO — Mark Phariss and Vic Holmes have been through a lot in the more than 16 years they’ve been together, from hiding their relationships under “Don’t Ask, Don’t Tell” to commuting long-distance to see each other for 11 years.
The two first met in San Antonio at a mutual friend’s birthday party.
“For me, it was love at first sight,” Phariss said.
But Holmes, who was in the Air Force, was seeing someone at the time. The two became friends until Holmes was available.
“I immediately asked him out on a date,” Phariss recalled, “and we’ve been together ever since.”
The couple is one of two same-sex couples who are plaintiffs in a federal lawsuit filed this week that challenges Texas’ 2005 constitutional amendment that prohibits same-sex couples from marrying. The lawsuit, one of many lawsuits in states across the country, claims the Texas constitution violates protections of the United States Constitution, such as the right to equal protection under the law.
“We love each other, and we think it’s discriminatory that gays and lesbians can’t marry and receive all the benefits and the burdens that go with being married,” Phariss said.
‘A solid case’
The couple started meeting with lawyers to file the suit about a month and a half ago.
Barry Chasnoff is the lawyer representing the couples pro bono on behalf of the San Antonio law firm Akin Gump Strauss Hauer & Feld. He said he agreed to take the case when someone in the firm brought it to his attention.
The firm has been a supporter of LGBT issues, having filed an amicus brief in U.S. v. Windsor, a case that led to the U.S. Supreme Court striking down a part of the federal Defense of Marriage Act in June. But Chasnoff said he wanted to be a bigger part of a civil rights case.
“I wanted an opportunity to do something on a civil rights issue that I view is important,” he said.
Chasnoff said he plans to file a motion for preliminary injunction to prevent state officials from enforcing the marriage ban and hopes the case moves along quickly.
“I think we’re correct on the legal issues,” he said.
Gov. Rick Perry and Attorney General Greg Abbott are listed as defendants in the case.
Perry spokeswoman Lucy Nashed said “The governor agrees with the majority of Texans who voted to define marriage in the Texas Constitution as between one man and one woman.”
Abbott spokeswoman Lauren Bean said the attorney general will defend “the Texas Constitution in this case just as we do in all cases where state laws are challenged in court.
“The U.S. Supreme Court was clear that states have independent authority to establish their marriage laws,” Bean wrote in an email. “Texans adopted a constitutional amendment defining marriage. We will defend that amendment.”
Ken Upton, senior staff attorney at Lambda Legal’s Dallas office, said he was aware the case would be filed.
“It’s one of many,” he said about the pending lawsuits across the country.
This is the second federal lawsuit filed in Texas this year. A Galveston man filed a case challenging the state marriage ban in July but later withdrew the suit after seeking legal advice. Upton said that while the man was trying to help bring equality to Texas, he didn’t have any plans to marry, so the San Antonio case has a better chance of moving forward because of the plaintiffs and their strong stories.
“It’s a solid case,” Upton said. “If they’re lucky enough to get in front of a court that will listen to them, their arguments are all correct. …It’s going to be a tough road to get as far as they need to get, but they’re certainly good attorneys, so, who knows, this could be the case.”
Austin couple Cleopatra DeLeon and Nicole Dimetman are the other couple listed in the suit.
Dimetman used to work for the law firm representing them, and the two met in San Antonio in 2001. They started a family last year and now have a 1-year-old son. While the decision to join the suit wasn’t an easy one, she said it was the right decision.
“It wasn’t an easy decision to get involved with the lawsuit,” she said. “But we have to do everything we can to make sure we’re treated like everybody else in Texas.”
DeLeon said she’s left and returned to Texas a number of times, and while the couple did marry in Massachusetts in 2009, they want to marry and have it recognized it their home state.
“I love Texas,” DeLeon said. “Texas is my home, and I feel like I have to change it.”
Dallas couple Mark “Major” Jiminez and Beau Chandler, who were arrested last year for trespassing after refusing to leave the Dallas County clerk’s office without a marriage license, have recently considered filing their own lawsuit.
“The idea to file is still under consideration,” Jiminez said this week.
But his focus in the upcoming months is beating County Clerk John Warren in the Democratic Primary.
“I would like to be in that position when marriage equality comes to Texas, so I could issue the licenses,” he said.
If he doesn’t win in the primary, he said the idea of the lawsuit would likely come back up.
Meanwhile on a state level, the Texas Supreme Court is scheduled to hear oral arguments in two same-sex divorce cases on Nov. 5.
One case involves an Austin couple who were granted a divorce in 2010, but Attorney General Greg Abbott appealed the decision. The other couple is from Dallas and is fighting to have their divorce granted after Abbott intervened to block it that same year.
Lambda’s Upton has filed a friend-of-the-court brief in the cases. He said he’s not sure what the court will do, but hopes they ask what purpose it serves to not let married same-sex couples get a divorce in the state. Instead, he said attention will likely focus on the state’s marriage amendment.
“I just don’t know what the court’s going to do,” Upton said. “I suspect that there’s going to be a lot of pressure for the court to be deferential to the constitutional amendment and the fact that the public voted for it.”
Fighting for everyone
With the fate of same-sex marriage and divorce at the state and federal level to be determined, Phariss said he and Holmes are focused on how their story can help others.
And while they’ll likely have years to wait before they can legally wed in Texas, they’ve come a long way since their love story began 16 years ago.
During their relationship, Holmes, an Air Force major, was stationed in San Diego, Mississippi, Arkansas and eventually Wichita Falls. Phariss later moved to North Texas for his job, but the years of commuting long-distance continued, with them going several weeks without seeing each other at times due to travel arrangements.
But with “Don’t Ask, Don’t Tell” still being enforced in the military, the two had to keep their relationship secret. Phariss said Holmes was often asked why a man was calling him all the time and what was in San Antonio and Dallas when he’d visit Phariss. So the two decided to list Phariss under one of their female friend’s names as Holmes’ fiancé, so her name and picture would show up when he called Holmes.
“It was just a way of hiding who we were,” Phariss said.
When Holmes retired from the Air Force in 2010, they were finally able to live together and be honest about their relationship. They’ve thought about marrying for years, but the timing hasn’t been right because they want to wed in Texas.
“We talked about it off and on over the years, but it’s just not been an option,” Phariss said.
The couple flew to San Antonio earlier this year on Oct. 3 to try to obtain a marriage license from the Bexar County clerk’s office, but was denied.
At the time, they’d decided to file a lawsuit and wanted their lawyers to be present as witnesses.
“We just wanted to see about getting a license,” Phariss said. “We didn’t anticipate they would give it to us, but if they would, we wanted to plan a wedding.”
When marriage equality comes to Texas, Phariss said they would likely marry in Dallas, having often talked about making it official at the Dallas Aquarium. But he said the lawsuit isn’t just for their fairy tale to have a happy ending.
“I just want it to be remembered it’s more than about the four plaintiffs,” Phariss said about the suit. “It’s about enabling all gays and lesbians in
Texas and this area to be able to marry.”
This article appeared in the Dallas Voice print edition November 1, 2013.