On Feb. 27, the Office of Attorney General Greg Abbott filed a notice of appeal of a ruling issued one day earlier by U.S. District Judge Orlando Garcia of the Western District of Texas.
In Garcia’s ruling in DeLeon v. Perry, the San Antonio federal judge granted a motion for a preliminary injunction filed by two same-sex couples. Garcia’s ruling enjoins Texas officials and the Bexar County Clerk, defendants in DeLeon, from enforcing the state’s constitutional and Family Code provisions barring recognition of same-sex marriages.
The A.G.’s plans for an appeal didn’t surprise Daniel “Neel” Lane Jr., a partner in Akin Gump Strauss Hauer & Feld in San Antonio. Lane represents the plaintiffs, Cleopatra DeLeon, Nicole Dimetman, Vic Holmes and Mark Phariss. About appearing before the U.S. Court of Appeals for the Fifth Circuit, Neal said, “We are expecting a full and fair consideration.”
In his Feb. 26 ruling, Garcia stayed the execution of the preliminary injunction pending any appeal, with a nod to the confusion in Utah’s same-sex marriage litigation. Neal also noted that his clients will not file an interlocutory appeal of that stay.
The Office of Gov. Rick Perry, who is named in his official capacity as a defendant, issued a statement after Garcia’s Feb. 26 ruling: “Texans spoke loud and clear by overwhelmingly voting to define marriage as a union between a man and a woman in our Constitution, and it is not the role of the federal government to overturn the will of our citizens. The 10th Amendment guarantees Texas voters the freedom to make these decisions, and this is yet another attempt to achieve via the courts what couldn’t be achieved at the ballot box. We will continue to fight for the rights of Texans to self-determine the laws of our state.”
Abbott, who also is named in his official capacity as a defendant, issued a statement: “This is an issue on which there are good, well-meaning people on both sides. And, as the lower court acknowledged today, it’s an issue that will ultimately be resolved by a higher court. Texas will begin that process by appealing today’s ruling to the Fifth Circuit.”
The A.G.’s statement noted that, if the Fifth Circuit honors precedent, “Then today’s decision should be overturned and the Texas Constitution will be upheld.”
After the A.G. filed the notice of appeal, Lauren Bean, a spokeswoman for the office, said her agency would issue no additional statements in light of its appeal.
In his 48-page opinion, Garcia wrote, “Regulation of marriage has traditionally been the province of the states and remains so today.” But he added, “[A]ny state law involving marriage or any other protected interest must comply with the United States Constitution.”
He noted that the U.S. Supreme Court in United States v. Windsor ruled in 2013 “that the federal government cannot refuse to recognize a valid state-sanctioned same-sex marriage.”
Garcia wrote, “Now, the lower courts must apply the Supreme Court’s decision in Windsor and decide whether a state can do what the federal government cannot, discriminate against same-sex couples.”
He added, “After careful consideration, and applying the law as it must, this Court holds that Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process. Texas’ current marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason.”
In his conclusion, Garcia wrote: “Today’s Court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent.”
He added that Supreme Court precedent prohibits states from passing legislation “born out of animosity against homosexuals,” has extended “constitutional protection to the moral and sexual choices of homosexuals,” and bans the federal government “from treating state-sanctioned opposite-sex marriages and same-sex marriages differently.”
“Our clients are thrilled. It is huge,” Lane said after the ruling. Lane said he had told the judge during arguments that the defendants’ position that plaintiffs still had the “right” to get married, just not to same-sex partners, seemed akin to telling a drowning man he still had a right to breathe, “just not air.”