“Reminds me of the one that I love”
On February 26, 2014, federal district judge Orlando Garcia held that Texas’s state constitutional and statutory provisions excluding same-sex couples from marriage and refusing to recognize such couples validly married in other jurisdictions likely violate the U.S. Constitution. The ruling in de Leon v. Perry granted the plaintiff couples’ motion for a preliminary injunction barring enforcement of the marriage exclusion and nonrecognition laws. Same-sex couples are not marrying yet in the Lone Star State because the judge cautiously and expressly followed the U.S. Supreme Court’s lead by staying his order, putting the ruling on hold until after expected proceedings in the U.S. Court of Appeals for the Fifth Circuit are complete. Judge Garcia’s order joins previous preliminary or final court rulings in favor of marriage equality by federal judges in Ohio, Utah, Oklahoma, Kentucky, Virginia, and Illinois, as well as state court rulings under the constitutions of New Jersey and New Mexico, all decided since the Supreme Court’s striking down a key part of the “Defense of Marriage Act” (DOMA) last June in United States v. Windsor. Collectively, they are creating a well-trod path the U.S. Supreme Court could follow when it takes up the issue, sooner rather than later thanks to the welter of court decisions striking down state marriage bans and cases seeking to do likewise.
Plaintiffs Cleopatra de Leon and Nicole Dimetman, a couple since 2001, married in Massachusetts in 2009 because their home state Texas would not let them; it now refuses to recognize their marriage. Plaintiffs Victor Holmes and Mark Phariss, who started dating in 1997, were denied a marriage license when they applied in Texas in 2013. They sued in November 2013, and three months later they have now won an important victory. The federal district court ruled on their motion for a preliminary injunction so that the state would not be able enforce its discriminatory marriage laws even before the court reaches a final judgment and may enter a permanent injunction. (Since it stayed its decision, neither the plaintiffs nor any other same-sex couples will be getting married in Texas until after the appeals process is completed.) Thus, rather than rule that in fact the state’s marriage laws are unconstitutional, the court had only to conclude that the plaintiffs had shown it likely that the laws are unconstitutional. But the court’s reasoning in granting the motion makes it extremely unlikely that any further proceedings would make it change its mind about the laws’ permissibility.
After a quick tour of the “politically charged and controversial debate regarding the right to marry, and particularly, the right of same-sex couples to marry in the United States,” including the development of legal marriage for same-sex couples in numerous states and the Supreme Court’s invalidation of part of DOMA, the court turned to its analysis. On the merits, Judge Garcia first concluded (as have a number of other courts recently) that the Supreme Court’s 1972 summary dismissal without opinion of a gay couple’s marriage lawsuit from Minnesota in Baker v. Nelson was no longer binding precedent. He then turned to whether the plaintiffs had shown a likelihood that they would prevail on their equal protection claim, their fundamental right to marry claim, or both.
Under equal protection, the court followed several others that have decided recently challenges to marriage exclusions in not definitively resolving the doctrinal test to apply. It considered the factors commonly taken as bearing on how suspicious courts should be of sexual orientation discrimination, that is, what level of scrutiny it should apply (“rational basis review,” a “heightened” or “intermediate scrutiny” less deferential to the government, or a very skeptical “strict scrutiny”). It found, and this was hardly disputable, that gay and lesbian people “have been subjected to a long history of discrimination.” The court doesn’t definitively make a factual finding, but merely notes, that “Plaintiffs argue that, like other suspect classifications, sexual orientation has no ‘relation to [the] ability’ of a person ‘to perform or contribute to society.’” Citing previous equal protection litigation, the court concluded that “Furthermore, the scientific consensus is that sexual orientation is an immutable characteristic.” And fourth, the court reasoned that “the history of same-sex marriage bans across the nation illustrates the historical lack of political power possessed by gays and lesbians.” Although these factors all pointed toward one of the less deferential forms of review and the court adjudged the plaintiff’s arguments “compelling,” Judge Garcia concluded that “it is not necessary to apply heightened scrutiny to Plaintiffs’ equal protection claim since Texas' ban on same-sex marriage fails even under the most deferential rational basis level of review.”
The court rejected the state’s claim that excluding same-sex couples from marriage was rationally related to ensuring that children would be raised by a father and mother or encouraging “stable family environments for responsible procreation.” Besides pointing out the illogic and utter lack of evidence for such contentions, the court quoted and followed other recent courts on these point, such as those holding Utah’s and Oklahoma’s discriminatory marriage laws unconstitutional. (Like many other marriage cases, it also quoted one of Justice Scalia’s dissents, the one from Lawrence v. Texas where he had reasonably suggested that “the encouragement of procreation” could not justify denying marriage to same-sex couples “since the sterile and elderly are allowed to marry.”) Indeed, the court noted that excluding same-sex couples from marriage affirmatively harms the children they are raising or may have. And, again like other courts, Judge Garcia rejected appeals to tradition. For these reasons, the court concluded that Texas’s marriage exclusion was “unconstitutional because without a rational relationship to a legitimate governmental purpose, it denies same-sex couples the benefits, dignity and value of celebrating marriage and having their out-of-state marriage recognized.” So, although the court technically only had to rule that the plaintiffs were likely to win on their constitutional claim, its actual reasoning appears to be that plaintiffs have established their claim, which leaves little or nothing for it to do next to render a final judgment in their favor.
Curiously, the court said that because plaintiffs showed they were likely to win on their equal protection claims it need not address their other constitutional claim, but then proceeded to address it anyway. On the plaintiffs due process claim, the court reasoned that marriage is a fundamental right, that it is “the right to marry the partner of one’s choosing,” and thus that same-sex couples were not seeking a new putative “right to same-sex marriage” just as the Supreme Court did not frame the right at issue in Loving v. Virginia as a “right to interracial marriage.” Because the state was completely denying this fundamental right to same-sex couples, it had to survive strict scrutiny. But because its marriage exclusion was not even rationally related to a legitimate governmental interest, it necessarily was not narrowly tailored to a compelling governmental interest, the test of strict scrutiny.
Turning to Texas’s refusal to recognize marriages of same-sex couples from other jurisdictions, the court treated this as implicating a right to marriage recognition separate from the right to marry. Finding Windsor to give inadequate guidance as to the proper level of scrutiny, the court found it sufficient to apply rational basis review because the state’s law could not survive even that deferential review. It did not matter that Section 2 of DOMA, not ruled on in Windsor, purports to give states permission to refuse recognition of the marriages of same-sex couples, for “’Congress does not have the power to authorize the individual States to violate the Equal Protection Clause,’” the court concluded, quoting the Supreme Court’s 1971 decision in Graham v. Richardson.
Following the foregoing analyses on the merits, it took the court only a few pages to establish that the plaintiffs were entitled to a preliminary injunction. They had established a likelihood of prevailing on the merits of their constitutional claims. They were being irreparably injured by being denied the right to marry or recognition of their marriage, resulting in the denial of countless rights and obligations. The balance of equities favored the plaintiffs over the state, and it would be in the public interest to issue the injunction, since the laws were unconstitutional (or at least likely unconstitutional) and since the court was not yet changing the status quo, instead staying its own injunction until after appeals are finished.