Cleopatra de Leon, left, and Nicole Dimetman hug attorney Neel Lane after February's ruling by a federal judge in San Antonio that Texas' gay marriage ban is unconstitutional. (Jerry Lara/San Antonio Express-News via Zuma Press/MCT)
The Texas gay marriage case appears on track to be heard late next month or in December, and probably before the same federal appellate judges who consider a contrary ruling from Louisiana, a lawyer for the Texas plaintiffs said Monday.
Neel Lane, who will make the arguments for the two same-sex couples challenging Texas’ ban on gay marriage, said they have been granted their request for an expedited hearing. Last week, Lane’s clients sought the speed-up because one of them, Nicole Dimetman of Austin, is pregnant and expecting to give birth in March.
Late last month, 5th U.S. Circuit Court of Appeals Judge Jerry E. Smith granted Louisiana state officials’ request that the two states’ cases be heard by the same three-judge panel. In Louisiana, a federal district judge upheld that state’s ban.
Lane, a partner in the San Antonio office of the firm Akin Gump Strauss Hauer & Feld, said it will be Nov. 7 before all of the briefs in the Louisiana case are submitted.
In the Texas case, Attorney General Greg Abbott submitted the last of the written arguments to the New Orleans appellate court late Friday. He is challenging a February ruling by U.S. District Judge Orlando Garcia of San Antonio that Texas’ prohibition of same-sex marriage is unconstitutional — an edict Garcia held in abeyance so higher-ranking jurists could weigh in.
In briefs submitted by Abbott and the Texas plaintiffs, who include a gay North Texas couple, one thing is clear: Each side wants to focus the appeals court’s attention on a different Supreme Court precedent, be the subject at hand doctor-assisted suicide or interracial marriage.
Abbott’s office repeatedly invoked Washington v. Glucksberg, a euthanasia case from Washington state in the late 1990s. In that case, the Supreme Court unanimously ruled that a right to doctor-assisted suicide was not a fundamental liberty interest protected by the 14th Amendment’s due process clause because it wasn’t “deeply rooted in the nation’s history.”
“They do not argue that a right to marry a same-sex partner … is deeply rooted in history and tradition,” Abbott writes, referring to the plaintiffs. “Instead, the plaintiffs contend that this Court should simply defy Glucksberg‘s command.”
The state brief says circuit courts in Denver and Richmond, Va., which recently upheld rulings striking down state bans, ducked the requirements of the 1997 euthanasia case. One of the circuits spoke of a need to “stretch to accommodate changing societal norms.” But if judges can ignore precedent and choose what is a constitutional right, “that is not a government of laws, but of men,” Abbott’s brief said.
If same-sex marriage is not a fundamental right, Abbott said Texas’ laws and constitutional amendment that prohibit same-sex unions have to undergo what’s known as a “rationality review.” It can be very favorable to states, especially as Abbott defines it: The state doesn’t have to prove the bases for its law are rational, such as that heterosexual unions are better than homosexual ones at producing children, or that favoring opposite-sex marriage is a good way to prevent unplanned pregnancies.
“Rational conjecture is enough,” the state argued, citing a 1992 cable TV case.
Lane and other lawyers for the plaintiffs have cited a line of cases about racial discrimination in the South, especially Loving v. Virginia, a 1967 case in which the Supreme Court struck down a law barring a black person from marrying a white person. In Lane’s brief last month, he said Abbott’s argument “parrots Virginia’s failed arguments in Loving.” Lane evoked anti-miscegenation laws in 30 states, and 16 previous cases Virginia’s lawyers were able to cite.
As we reported here, Lane wrote that tradition “does not provide a rational basis for an otherwise unconstitutional law.”