Lengthening the list of federal trial judges’ rulings striking down state bans on same-sex marriage, a federal judge in San Antonio on Wednesday ruled unconstitutional the 2005 voter-approved ban in Texas, along with state laws reinforcing the ban. The ruling, though, was put on hold to allow an appeal to go forward.
U.S. District Judge Orlando L. Garcia found that the marriage prohibition not only violates the rights of gays and lesbians who wish to marry in Texas, but also unconstitutionally scuttles marriages that same-sex Texas couples have entered in different states that allow such unions. The judge made clear that his ruling, if ultimately upheld, would apply to all such couples, not just the two couples who sued the state in this case.
Texas Attorney General Greg Abbott immediately announced plans to appeal the case to the U.S. Court of Appeals for the Fifth Circuit. Among the five federal appeals courts where appeals on this issue are or soon will be unfolding, the chances seem greatest in the Fifth Circuit that a panel of conservative judges would be ruling on the case.
If that happens, it would likely increase the chances that there will be conflicting decisions on same-sex marriage bans, and that would enhance the chances that the Supreme Court would step in to decide the issue, perhaps as early as next Term.
Judge Garcia’s decision was, technically, a ruling in favor of a preliminary injunction to bar enforcement of the state constitutional ban and several state laws along the same lines, on the theory that the two couples are likely to win their constitutional challenge when their case goes to a full trial. But the strength of the reasoning he used was a clear indication that the Texas measures are, for the moment, in deep doubt.
The judge noted that he was following the rulings of six other federal trial judges in recently striking down similar bans. But none of those rulings has yet gone into effect, because of court-imposed delays to allow appeals.
Among the states where voter-approved bans on same-sex marriage have been struck down in the recent rulings, those in Texas and Oklahoma passed by the largest margins — seventy-six to twenty-four percent of those balloting in both states.
Like other judges who have ruled against such restrictions, Judge Garcia relied upon a series of Supreme Court rulings, most recently its decision last June (U.S. v. Windsor) striking down a key section of the federal Defense of Marriage Act forbidding federal marital benefits to already-married same-sex couples.
Garcia struck down the Texas provisions both on equal protection and due process grounds, using the least-demanding standard of constitutional analysis — “rational basis.” He said the state had not proved to him that it had any valid reasons for the ban.
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