Texas Attorney General Greg Abbott’s office was working on an appeal Thursday of a federal judge’s decision to lift the state’s ban on gay marriage.
U.S. District Judge Orlando Garcia ruled a day earlier that the ban was unconstitutional. But the judge is allowing the law to remain in place to give Abbot time to appeal to the 5th U.S. Circuit Court of Appeals, noting that the issue will likely end up at the U.S. Supreme Court.
Abbott, the leading candidate to replace Republican Gov. Rick Perry, took a conciliatory tone after the ruling. He said "there are good, well-meaning people on both sides" of the same-sex marriage debate, but he insisted that states have the right to set their own marriage laws.
He said Texas voters did just that in 2005, by passing a constitutional amendment that defines marriage as between a man and a woman.
"As the lower court acknowledged today, it’s an issue that will ultimately be resolved by a higher court," Abbott said, adding that Texas would begin that process by appealing to the 5th Circuit.
In his ruling, Garcia said marriage was an individual right that a voter-approved constitutional amendment couldn’t deny. He said his decision was not made "in defiance of the great people of Texas or the Texas Legislature," but in compliance with the U.S. Constitution and Supreme Court precedent.
"Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution," he wrote.
Garcia’s ruling added to a tangled web of court rulings, state laws and legal opinions across the country that is expected to end up before the U.S. Supreme Court. There are civil rights lawsuits in 24 states asking courts to overturn bans on state gay marriage bans, and gay rights groups have won recent victories in other conservative states, including Utah and Oklahoma.
U.S. Attorney General Eric Holder said this week that state attorneys general were not obligated to defend local laws if they believed the laws violated the U.S. Constitution. Democratic attorneys general in at least six states-Virginia, Pennsylvania, California, Illinois, Oregon and Nevada-have declined to defend same-sex-marriage bans that have been challenged in court by gay couples.
"It’s really a dizzying pace," said Linda McClain, a constitutional law professor at Boston University.
She said most judges declaring bans unconstitutional have relied on a U.S. Supreme Court decision in June that overturned much of the federal Defense of Marriage Act, ruling that it failed to recognize legal same-sex marriages. But she also noted that both sides of the debate are using that 5-4 ruling, which called the failure to recognize gay marriage demeaning to homosexuals but also reinforced the principle that states set marriage laws.
Gay rights groups across the country have filed lawsuits using the first part of the ruling. In Texas, Abbott bases his argument on the second.
The Utah case is now before the 10th U.S. Circuit Court of Appeals in Denver, but Texas falls under the conservative 5th Circuit based in New Orleans.
"I think it’s pretty clear to see there may be multiple rulings by multiple circuits that will force this issue back to the Supreme Court," Abbott said. "We all think this is an issue that will be decided by the Supreme Court."
The two couples who brought the case in San Antonio celebrated their victory Wednesday, but acknowledged it was only a first step.
Mark Phariss and Victor Holmes filed a lawsuit arguing that Texas’ ban on same-sex marriage unconstitutionally denied them the fundamental right to marry because of their sexual orientation. Cleopatra De Leon and Nicole Dimetman filed a lawsuit saying Texas officials violated their rights by not recognizing their marriage conducted in a state where gay marriage is legal.
"Growing up with my mom and dad, I envied their marriage because I really didn’t think I’d have something like that," Phariss said. "Reading that decision, it was the first time I realized, yes I can get married."
Another gay couple filed a separate lawsuit in federal court in Austin. In that case, two men argue that the ban discriminates against them based on their gender. That case is scheduled for a hearing later this year.