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Part 1: Same-sex marriage (SSM) in Texas

2014-FEB to OCT: In DeLeon v. Perry, a
U.S. District Court legalizes SSM in Texas.
Decision is stayed pending the state's appeal
to the 5th U.S. Circuit Court of Appeals.
Status of SSM as of 2014-FEB.

Summary of the Texas law about a marriage by same-sex couples, a lawsuit, and the resultant ruling:

The Texas Family Code has banned same-sex marriages since 1997. The Code also has prohibited the recognition of out-of-state same-sex marriages or civil unions since 2003. Further, Section 32 of the Texas Constitution was amended to define marriage as "the union of only one man and one woman," and to forbid both same-sex marriages and civil unions in the state. The amendment, Proposition 2, was passed with approximately 76% of the popular vote in 2005. It states:

"(A) Marriage in this state shall consist only of the union of one man and one woman.

(B) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage." 1

Two same-sex couples filed a lawsuit in the U.S. District Court for the Western District of Texas in San Antonio. They are:

  • Victor Holmes and Mark Phariss who are currently unmarried, but want to marry in their home state of Texas, and

  • Cleopatra de Leon and Nicole Dimetman who were married in Massachusetts but are considered "legal strangers" --mere roommates -- in Texas. They are raising a child together without the protections and benefits given by the state for opposite-sex married adults and their children automatically receive. 2,3

On 2013-OCT-03, Holmes and Phariss applied for a marriage license at the Bexar County Clerk's office. As they and everyone else expected, they were refused. They filed a complaint with the U.S. District Court.

Defendants are Rick Perry in his capacity as Governor of Texas, Greg Abbott in his capacity as Texas' Attorney General, Gerald Rickoff, the clerk of Bexar County, and David Lakey in his capacity as Commissioner of the Texas Department of State Health Services -- the agency that provide marriage forms to clerks' offices and registers subsequent marriages.

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The case was heard by Judge Orlando Garcia, who issued a 48 page ruling on 2014-FEB-26.

Judge Garcia based his decision on both:

  • The U.S. Supreme Court's ruling in Windsor v. United States on 2013-JUN-26, and

  • Both the due process and equal protection clauses in the 14th Amendment to the U.S. Constitution which requires the federal government and state governments to treat individuals -- and by extension couples -- equally. 2,3

Compared to other court rulings on same-sex marriage (SSM), this one is particularly easy to understand. We recommend that anyone who wants to become familiar with the current conflict in many states over SSM read his ruling. Although it refers only to the situation in Texas it is very helpful to understand current conflicts in many other states as well. 4

The defendants claimed that the state's ban on same-sex marriage has two purposes:

  • To increase the likelihood that both a mother and a father would raise children in the family. The court determined that:

    "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 ... [it] causes needless stigmatization and humiliation for children being raised by the loving same-sex couples being targeted. ... Homosexual couples are as capable as other couples of raising well adjusted children. ... this Court finds that far from encouraging a stable environment for childrearing, Section 32 denies children of same-sex parents the protections and stability they would enjoy if their parents could marry.

  • To encourage stable family environments for responsible procreation. The court determined that this argument of the defendants also fails. Judge Garcia concluded that:

    "The notion that same-sex marriage will encourage responsible procreation assumes that heterosexual marriage is 'naturally procreative." However, procreation is not and has never been a qualification for marriage. ... This procreation rationale threatens the legitimacy of marriages involving post-menopausal women, infertile individuals and individuals who choose to refrain from procreating. These individuals -- who cannot or will not procreate -- are allowed to marry under Texas' current laws. ... Same-sex marriage does not make it more or less likely that heterosexuals will marry and engage in activities that can lead to procreation. ... Same-sex couples, although unable to 'naturally procreate' can and do have children. ... through assisted reproductive technology and adoption. ... the Court finds the argument that allowing same-sex couples to marry will undermine procreation is nothing more than an unsupported overbroad generalization that cannot be a basis for upholding discriminatory legislation."

He wrote that the marriage ban approved by Texas voters in 2005 as an amendment to the Texas Constitution:

"... conflicts with the United States constitution’s guarantees of equal protection and due process [within its 14th Amendment]. ... Because Plaintiffs have shown that Texas' same-sex marriage ban violates their equal protection rights, the law is unconstitutional. ... This Court finds that by declaring existing, lawful same-sex marriages [solemnized out of state] void and denying married couples the rights, responsibilities and benefits of marriage, Texas denies same-sex couples who have been married in other states their due process. ..."

"The Court finds that Article 1, Section 32 of the Texas Constitution and corresponding provision of the Texas Family Code are unconstitutional. These texas laws deny Plaintiffs access to the institution of marriage and its numerous rights, privileges and responsibility for the sole reason that Plaintiffs wish to be married to a person of the same sex. The Court finds this denial violates Plaintiffs' equal protection and due process rights under the Fourteenth Amendment to the United States Constitution."

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Judge Garcia stayed his ruling pending a probable appeal by the state to the U.S. 5th Circuit Court of Appeals.

Zack Ford, writing for ThinkProgress said:

"According to the ruling, not only are these families denied benefits under the law, they are also subjected to 'state sanctioned discrimination, stigma, and humiliation,' explaining:

'In this case, it is clear that Plaintiffs suffer humiliation and discriminatory treatment under the law on the basis of their sexual orientation, and this stigmatic harm flows directly from Texas’ ban on same-sex marriage.'

[Judge] Garcia cited Windsor [v. United States], the Supreme Court’s ruling overturning [Section 3 of the federal] Defense of Marriage Act, noting that not recognizing same-sex marriages 'demeans the couple, whose moral and sexual choices the Constitution protects'." 2

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2014-FEB: The status of SSM in Texas and the rest of the U.S.:

As of 2014-FEB-27 same-sex couples could marry in 17 states. In addition, federal District Courts in four states (Utah, Oklahoma, Virginia and now Texas) had legalized SSM. However, same-sex couples in these four states cannot currently marry. Stays are in place pending appeals to various U.S. Circuit Courts of Appeal. There were also about 12 additional active lawsuits in different states where judges have not yet issued their rulings.

Texas Governor, Rick Perry (R) promised to:

"... fight for the rights of Texans to self-determine the laws of our state. 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."

This statement reflects three common beliefs found among many social and political conservatives:

  • That when the public passes an amendment to a state constitution, it is morally and legally valid unless it is specifically repealed, even if the beliefs of the public change over time.

  • That when an amendment to the state constitution that has been approved by a pubic vote conflicts with the U.S. Constitution, the amendment is given priority and still remains valid and enforceable.

  • That a federal court cannot declare an amendment to a state constitution to be unconstitutional.

In fact, there is a consensus of constitutional experts who are not religious or social conservatives that in case of conflict between a state constitution and the federal constitution, the latter rules. Also, it is one of the main functions of federal courts to identify cases of such conflicts and declare sections of state constitutions as invalid and unenforceable. More details.

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This topic continues in the next essay with an appeal of the "DeLeon"
case to the U.S. 5th Circuit Court of Appeals along with two similar cases
from Louisiana and Mississippi to the U.S. 5th Circuit Court of Appeals.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "List of U.S. state constitutional amendments banning same-sex unions by type," Wikipedia, as on 2015-FEB-21, at:
  2. "Texas Judge Hands Marriage Equality Its Latest Victory," Think Progress, 2014-FEB-26, at:
  3. Tom Dart & Tom McCarthy, "Texas ban on gay marriage 'demeans dignity' and is unconstitutional – judge," The Guardian, 2014-FEB-26, at:
  4. Text of "De Leon et al. v. Perry et al., U.S. District Court for the Western District of Texas, 2014-FEB-26, at: This is an accursed PDF file.

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Home > Religious info. > Basic > Marriage > Same-sex marriage > SSM sub-menu> Texas > here

Home > "Hot" topics > Homosexuality> Same-sex marriage> Texas > here

Copyright © 2014 & 2015 by Ontario Consultants on Religious Tolerance
Originally posted: 2014-FEB-27
Latest update: 2015-MAY-12
Author: B.A. Robinson

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