Friday, February 28, 2014

Texas ban on same-sex marriage struck down

And now Texas is the latest to fall. On Wednesday, US District Judge Orlando Garcia, issued a ruling declaring Texas' ban on gay marriage to be unconstitutional.

From the decision (courtesy of The Washington Post):
"Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution," Garcia wrote in his decision. "These Texas laws deny Plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex."
As I wrote over a year ago, once one state legalized gay marriage the bans in other states would be declared unconstitutional on equal protection grounds. The simple fact is that once one state says it's okay for same sex couples to get married every other state will have to (even if dragged kicking and screaming) recognize those marriages. If a man and woman get married in Texas and move to New Mexico, they are recognized as married in New Mexico. They are also recognized as being married when it comes to federal benefits and taxes.

And once a state recognizes same-sex marriage the same rules must apply. Just think about the absurdity of the argument that Texas will recognize an out-of-state marriage for a heterosexual couple but won't recognize an out-of-state marriage for a same-sex couple. That is discrimination on its face. Now maybe Texas doesn't have to make same-sex marriage legal in the state - but, under Equal Protection jurisprudence, Texas must recognize an out-of-state marriage or else come up with some rational explanation for why the state recognizes some marriages but not others.

Late last year in Utah a federal judge issued a similar ruling, prompting hundreds of gay couples to get married in the waning days of 2013. The US Supreme Court then decided to issue a stay on the court's order which has led to the state putting a halt to recognizing those couples who got married before the stay was issued. Which raises the issue of whether such a move by the state would amount to an ex post facto law.

In order to avoid a similar situation (or because he wanted to have it both ways), Judge Garcia immediately stayed his order pending an appeal by the state.

The ruling puts Texas Taliban gubernatorial candidate Greg Abbot in a potentially awkward situation as he will file an appeal of the ruling and argue to the 5th Circuit Court of Appeals that the state's ban on same-sex marriage doesn't violate anyone's rights under the Constitution. While that argument may very well appeal to certain segments of the Texas population, it's hardly a ringing endorsement for inclusion.

Gov. Rick Perry couldn't resist opening his mouth and sticking his foot in it arguing that since Texas voters overwhelmingly rejected same-sex marriage in a statewide vote that the courts were meddling where they shouldn't be. I guess that the fair-haired one has forgotten, or just doesn't realize, that just because a law is on the books and supported by a majority of folks, doesn't make it constitutional. He might want to review Brown v. Board of Education as a refresher.

1 comment:

Lee said...

I continue to wonder why someone else's relationship is any of my business...if that are of age and consenting adults, what do you care? Why do you take the time out of your own life to care about a relationship that you are not a member of and poses no threat to you?