U.S. District Judge Orlando L. Garcia of the Western District of Texas, San Antonio, ruled on February 26 that Texas has shown no rational basis for depriving same-sex couples of the right to marry or for refusing to recognize same-sex marriages performed elsewhere. Adding yet another brick to the solid wall of federal trial court decisions that has been mounting since last summer, when a judge in Ohio ordered that state to recognize an out-of-state same-sex marriage, Judge Garcia became the seventh consecutive federal trial judge to rule in favor of marriage equality. De Leon v. Perry, 2014 WL 715741.
This was one of the rapidly-filed cases following upon last summer’s ruling by the Supreme Court in U.S. v. Windsor that Section 3 of the Defense of Marriage Act violated the right of gay people to “equal liberty” under the Due Process Clause of the 5th Amendment. Although the Court did not rule directly that same-sex couples have a right to marry in that case, it did rule that the federal government could not discriminate between different-sex and same-sex marriages. On the same day, the Court dismissed an appeal by proponents of California Proposition 8, allowing same-sex marriage to become available in California, the nation’s largest state. This double-header ruling set off a stampede to the courthouse by same-sex couples around the country, seeking rulings that states must issue marriage licenses to same-sex couples and recognize the marriages of those who had gone out of state to marry. Over the course of 2013, the number of states in which the law embraced marriage equality, either through court rulings or legislative action, doubled, most dramatically at year’s end as the New Mexico Supreme Court and the U.S. District Court in Salt Lake City ruled on consecutive days in favor of marriage equality.
Several lawsuits are pending in Texas on various aspects of this issue. The Texas Supreme Court has heard argument on whether same-sex couples who live in Texas can get divorced in Texas courts from marriages contracted elsewhere, and Judge Garcia is not the only federal judge in Texas dealing with a marriage equality case, but he is now the first to rule.
In light of prior post-Windsor decisions in Ohio, Utah, Oklahoma, Kentucky, Virginia, and Illinois (just a few days ago), it would have been astonishing had Judge Garcia ruled the other way, and at this point a ratchet effect has emerged, as a right has been repeatedly recognized and is becoming established. Of course, that right will not be fully secure until a definitive ruling comes from the Supreme Court, but every additional district court decision adds more weight to the growing body of precedent.
At this point, there is really nothing new that Judge Garcia could say unless he was prepared to depart from what has become the familiar approach to the issue. As have several other district judges, he toyed with the question whether sexual orientation invokes heightened scrutiny in an equal protection case, but in common with most of the other judges found that he did not have to resort to heightened scrutiny to find the ban unconstitutional, because the arguments the state made — the same tired arguments that other states have made — don’t stand up to the most deferential rationality analysis.
For example, he wrote, “There is no doubt that the welfare of children is a legitimate state interest; however, limiting marriage to opposite-sex couples fails to further this interest. Instead, Section 32 [the Texas constitutional ban] causes needless stigmatization and humiliation for children being raised by the loving same-sex couples being targeted.” And, he continued, “Defendants have not provided any evidentiary support for their asserting that denying marriage to same-sex couples positively affects childrearing.” Garcia was similarly dismissive of the “responsible procreation” argument. “In fact,” he wrote, “rather than serving the interest of encouraging stable environments for procreation, Section 32 hinders the creation of such environments.” He concluded that “Section 32 is not connected to any legitimate interest that justifies the denial of same-sex marriage or recognition of legal out-of-state same-sex marriages.”
He ruled similarly on plaintiffs’ due process argument, this time using strict scrutiny because he found that the right at issue — the right to marry — has been repeatedly recognized by the Supreme Court as a fundamental right that cannot be abridged by the state without some legitimate compelling interest. He rejected the state’s argument that this case was about some new “right to same-sex marriage,” finding that the right at issue was the same one now enjoyed by different-sex couples in Texas. “Defendants have failed to identify any rational, much less a compelling, reason that is served by denying same-sex couples the fundamental right to marry,” he wrote.
He also found that the state was not free to do what the constitution prohibits the federal government from doing: denying recognition to same-sex marriages that have been contracted in other states. He rejected the state’s argument that Section 2 of DOMA, which the Supreme Court did not address in the Windsor decision, protects the state’s right to deny recognition to such out-of-state marriages. “Whatever powers Congress may have under the Full Faith and Credit Clause,” he wrote, “Congress does not have the power to authorize individual States to violate the Equal Protection Clause.” He concluded that the state had not “provided any specific grounds that justify the refusal to recognize lawful, out-of-state same-sex marriages that is not related to the impermissible expression of disapproval of same-sex married couples.”
As have all the federal judges who have ruled on marriage equality claims since Windsor, Judge Garcia found support for his conclusions in the dissenting opinions of Justice Antonin Scalia, most notably in his dissent in Lawrence v. Texas, the Supreme Court’s 2003 decision striking down the Texas sodomy law. Justice Scalia argued that the reasoning of the Court would eliminate the ability of states to rely on tradition and moral disapproval as grounds for denying same-sex couples the right to marry, a conclusion with which Judge Garcia agreed in a section of his opinion rejecting the idea that Texas could justify its ban based on tradition.
This case has moved so quickly that Judge Garcia was ruling on a motion for a preliminary injunction by the plaintiffs. Preliminary injunctions are granted pending a full trial on the merits of a case, and normally stay in effect only until the court has given an ultimate ruling on the merits of a case. Thus, Judge Garcia’s injunction is only preliminary, but it is based on a finding that the state of Texas is highly unlikely to win this case on the merits, and any delay in allowing same-sex couples to marry or have their out-of-state marriages recognized will cause them irreparable injury. On the other hand, the U.S. Supreme Court ruled in January that a marriage equality decision had to be stayed while the state brought the case for review to the court of appeals. Since that ruling on the Utah case, every federal court that has issued a marriage equality ruling has stayed the ruling pending appeal, and Judge Garcia did the same, assuming, undoubtedly correctly, that Governor Rick Perry and Attorney General Greg Abbott will immediately appeal to the 5th Circuit Court of Appeals.
This will mean that marriage equality appeals are pending in the 4th, 5th, 6th, 9th and 10th Circuits, with arguments in the 10th Circuit in the Utah and Oklahoma cases scheduled for April and the 9th Circuit poised to announce the argument date for the Nevada case. The likelihood of a ruling by at least one court of appeals this summer means that the Supreme Court will most likely have at least one petition for review in a marriage equality case when it convenes in the fall, and probably more than one from several circuits. One may safely predict that the issue of marriage equality will be on the Supreme Court’s argument calendar during the 2014-15 term.
Judge Garcia, a veteran of more than twenty years on the federal bench, was appointed by President Bill Clinton in 1993. Texas attorneys Barry Chasnoff and Neel Lane represent the plaintiff couples, Cleopatra De Leon and Nicole Dimetman, who seek recognition of their out-of-state marriage, and Victor Holmes and Mark Phariss, who were rebuffed when they sought a marriage license from the office of Bexar County Clerk Gerard Rickhoff. Rickhoff is a defendant in the case along with Governor Perry, Attorney General Abbott, and Texas Health Commissioner David Lakey. Abbott immediately released a statement vowing to appeal, arguing that in the Windsor case the Supreme Court recognized the authority of states to define marriage. Judge Garcia recognized that as well, but observed that the Supreme Court said that such authority was subject to the overriding requirements of the Constitution.