Judge strikes down Tex. same-sex marriage ban, paving way for shift in conservative state

Despite the ruling a ‘stay’ will keep the ban in effect and Gov. Rick Perry says Texans voted otherwise. (Reuters)

A federal judge struck down Texas’s ban on same-sex marriages Wednesday, the latest in a rapid­-fire series of rulings in which judges have all reached the same conclusion: that states may not withhold marriage from gay men and lesbians.

The Texas ruling was handed down by U.S. District Judge Orlando L. Garcia, who declared the ban to be “state-imposed inequality.” His decision does not mean that gaycouples in Texas will be able to marry — at least not right away. Garcia, who was appointed by President Bill Clinton, immediately stayed the effect of his ruling, pending an appeal.

In his ruling, Garcia echoed the logic used by federal judges in five other states, where recent rulings have invalidated laws that banned same-sex marriage or laws that denied recognition to gay couples married in other states.

All the decisions followed the Supreme Court’s decision last year to strike down a key section of the Defense of Marriage Act, which had barred federal recognition of same-sex marriage.

These rulings have suddenly brought the prospect of same-sex marriage to some of the more conservative places in the union: Utah (where some marriages were performed), Oklahoma, Kentucky, plus politically divided Ohio and Virginia.

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Now Texas, the nation’s second-most-populous state and a bastion of modern social conservatism, becomes another unexpected battleground. The state has been so certain in its views that it banned gay marriage in 1997 — and again in 2003. And yet again, in 2005, when a constitutional amendment banning same-sex unions passed with 76 percent of the vote. Polls show that support for gay marriage in Texas lags behind the approval level nationwide.

In his ruling, Garcia echoed the reasoning used by other federal judges in recent decisions. He essentially found that same-sex marriage was not a new right or a privilege separate from heterosexual marriage that Texas could choose to offer or not.

Instead, Garcia said same-sex couples were being denied an old — and fundamental — right. That was the right to marry whomever they wanted.

“These Texas laws deny Plaintiffs access to the institution of marriage and its numerous rights, privileges and responsibilities,” he wrote, “for the sole reason that Plaintiffs wish to be married to a person of the same sex.”

Texas Attorney General Greg Abbott (R) said Wednesday that he will appeal the ruling to the U.S. Court of Appeals for the 5th Circuit, in New Orleans. “This is an issue on which there are good, well-meaning people on both sides,” said Abbott, a candidate for Texas governor.

“The U.S. Supreme Court has ruled over and over again that states have the authority to define and regulate marriage,” he said. “The Texas Constitution defines marriage as between one man and one woman.”

The ruling was yet another setback for same-sex marriage opponents, who hope the Supreme Court will ultimately reverse what they call the work of a group of activist judges.

“What we’re in is essentially a state of lawlessness that I do believe will eventually get corrected at the United States Supreme Court,” said Brian Brown, president of the National Organization for Marriage, a group that has campaigned for gay marriage bans across the country.

The plaintiffs in the Texas case included two couples. One, a lesbian couple, lives in Austin but had been married in Massachusetts, where same-sex marriage has been legal since 2004. They wanted Texas to recognize their out-of-state marriage license. The other, a gay couple from Dallas, sought a license to marry in Texas.

The state, in response, raised a series of arguments to justify the ban. Its attorneys argued that the marriage ban was designed to protect traditional, heterosexual marriages and to encourage homes with a father and a mother for child-rearing.

Barry A. Chasnoff, an attorney for the couples, argued that those reasons weren’t good enough.

In an interview Wednesday, Chasnoff said Garcia seemed to have sided with him on all of the important points.

“It appears that every argument carried the day,” Chasnoff said. Garcia “rejected any concept that children are harmed by being raised in same-sex marriages. He rejected any notion that allowing same-sex marriage would have any negative impact on heterosexual marriage.”

The Texas decision comes during a period of major political change in the nation, both a change in public attitudes toward same-sex marriage and an even faster shift in the way those marriages are treated by the law.

As recently as 2011, for instance, only five states allowed same-sex marriage. Today, after a flurry of laws approved by state legislatures, by voters or demanded by a state court, there are 17, plus the District. Politicians have signaled more willingness to embrace gay marriage, with President Obama reversing his opposition in the heat of his 2012 reelection campaign.

The shift was given new momentum last summer, when the Supreme Court struck down a key part of the Defense of Marriage Act.

The Supreme Court said then that its 5 to 4 ruling was only about federal law; the court was explicitly not rejecting state measures that barred same-sex marriage. But the court was also sweeping in its condemnation of the federal ban: Justice Anthony M. Kennedy wrote in his opinion that it “writes inequality into the entire United States Code.”

Since then, a string of lower-court justices have applied that same logic to state laws and found that same-sex marriage bans create inequality there as well.

So today, there are at least six more states in which court cases seem to be especially threatening to existing bans on same-sex marriage.

In Oregon and Nevada, state officials have said they will not defend their bans in ongoing court cases. And in Texas, Utah, Oklahoma and Virginia, federal judges have struck down bans, but their rulings are awaiting appeal. In Kentucky and Ohio, judges have struck down rules that prohibited recognition of gay couples married in other states.

Those appeals mean that four Circuit Courts of Appeal — the 4th, in Richmond; the 5th, in New Orleans; the 6th, in Cincinnati; and the 10th, in Denver — will consider versions of the same question: Can states bar same-sex couples from getting married or refuse to recognize same-sex marriages performed elsewhere?

For national groups advocating for same-sex marriage, these cases are a sign of long-sought success.

After a long series of losses at the ballot box a decade ago, they made a decision to focus on court cases, pressing the argument that marriage is a right that shouldn’t depend on a ballot box at all.

“We’ve always known that we don’t have to win within the four corners of every single state,” said Evan Wolfson, founder and president of Freedom to Marry, a campaign to win same-sex marriage nationwide. “But we’ve also known we have to win enough states and enough support to create the climate for the national victory. That’s how America does its civil rights business.”

In all, there are now 47 lawsuits challenging same-sex marriage bans in 25 states, according to Freedom to Marry. Wolfson’s group hopes that one will soon reach the U.S. Supreme Court — and give the justices a chance to guarantee same-sex marriage as a right in all states.

Robert Barnes and Peyton M. Craighill contributed to this report.

David A. Fahrenthold covers Congress for the Washington Post. He has been at the Post since 2000, and previously covered (in order) the D.C. police, New England, and the environment.
Niraj Chokshi reports for GovBeat, The Post's state and local policy blog.
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