Ari Ezra Waldman | Gay Marriage | Law - Gay, LGBT | News | Texas

A Win for Marriage Equality in Texas: Summary and Analysis


A federal judge in Texas issued an opinion today declaring that the state's refusal to allow gays to marry violates the federal constitution. At its core, this case -- De Leon v. Perry -- looks a lot like some of our other recent federal marriage equality cases. Some have been broader than others, but most, like De Leon, make two conclusions: First, that denying gays the right to marry violates the Due Process Clause because marriage is an important right that cannot be taken away light and, second, marriage discrimination violates the Equal Protection Clause because a state cannot treat opposite-sex and same-sex couples differently for no good reason.

3_texasJudge Garcia's decision is notable for several reasons. I will highlight two here at the outset. First, he does not dive into the heart of the level of scrutiny debate. He is content to say that marriage discrimination cannot even pass a low rational basis test. Second, he gives us a law nerd moment that students of gay rights will read for years to come to show how one case leads to the next which leads to the next and so on. Without Windsor, this case would look very different; without Lawrence, we wouldn't have gotten Windsor. And without Romer, we wouldn't have gotten Lawrence. As Judge Garcia writes:

Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution.

And how does he know that and that it applies to the notoriously marginalized LGBT community? Judge Garcia continues:

Supreme Court precedent prohibits states from passing legislation born out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).

Given that, the unconstitutionality of Texas's discriminatory statute seems pretty clear.


2_texasThere is one notable difference between this and other cases that some readers may find confusing. This was what lawyers call a "motion for preliminary injunction." For the most part, our marriage equality decisions have come as the result of a trial (the Prop 8 case, for example) or a "motion for summary judgment" (the Oklahoma decision, for example). We all know what trials are. Summary judgment motions happen when the parties and the judge think that a trial isn't really necessary: everyone agrees what the facts are and everyone agrees what the issues are, so the judge can go ahead and read the legal arguments and make his or her decision. 

Preliminary injunctions are a little different. They are, by definition, preliminary. They happen before trials. They stop bad things from happening so life can go on. And winning a preliminary injunction is pretty hard: you have to show you are likely to succeed at the underlying trial, that the damage to you without the injunction will be irreparable, that such damage outweighs any damage to the defendants, and that an injunction is good for everyone.

But, basically, getting a court to issue a preliminary injunction to stop the state from enforcing a law because the law is unconstitutional is a huge victory. It signals a final victory is just down the road. Therefore, although the injunction was stayed -- or held off from being implemented -- just like the decisions in Utah and Virginia, this is a major victory in a very red state.

TexasAnother notable element of the decision was Judge Garcia's eloquent explanation for how a continued denial of marriage rights causes "irreparable injury" to gays and gay couples. Not only can they not access important rights and benefits before they get a marriage license, but every day without the opportunity to marry and every day with a law on the books that says gay love is illegal is demeaning, a threat to dignity, and an erosion of freedom and personhood. This too often goes unstated.

Otherwise, the decision sounds downright ordinary, even routine. When Judge Vaughn Walker issued his decision in the Prop 8 case, the arguments were groundbreaking. Today, his arguments are repeated on a daily basis, winning in cities far more conservative that San Francisco.

Judge Garcia addressed the level of scrutiny, concluding that he agreed with the plaintiffs that discrimination on the basis of sexual orientation merited heightened scrutiny. He declined to take the plunge, though, noting, like many judges before him, that banning gays from marrying does not even pass the lowest form of constitutional review. Wanting to encourage couples to raise children in two-parent households is in no way realized by banning individuals of the same-sex from coming together in those very two-parent households. Banning gays from marrying does not encourage heterosexuals to marry. And gays are amazing parents. All the traditional arguments fail to explain why anyone would want to prevent gays from marrying. The only thing left is hatred, and that doesn't fly.

That was the Equal Protection argument. With respect to Due Process, Judge Garcia noted that all the plaintiffs want to do is exercise their right to choose whom to marry. They are not, as the State of Texas argued, trying to create a "new" right to "get gay married." Marriage is marriage, as our friend Brian Chelcun argued here before. We want to marry and marriage is a fundamental right that the state cannot fiddle with without a good reason. As discussed, there are no good reasons for marriage discrimination against gays.

The court also addressed Texas's refusal to recognize same-sex marriages performed out of state. That rule also failed to pass constitutional muster for roughly the same reasons.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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  1. great summary, thanks aew.

    those exploding sounds you hear? just the heads of the radical right wing nut jobs who support bigotry, hiding behind their religianity - the veil has dropped in texas. rush will need to start broadcasting around the clock now.

    Posted by: northalabama | Feb 26, 2014 5:49:41 PM

  2. And the party begins in Texas! As it should!

    Posted by: RexT | Feb 26, 2014 6:06:18 PM

  3. Thank you for the analysis, Ari. . .most appreciated. I've noticed here in California since equality in marriage was achieved (hopefully forever!) that even the most hateful of the hate-mongerers who proudly ran around with Prop 8 Support signs can find a single negative example of marriage equality redefining their marriages or harming heterosexual couples in any way. Straight couples were still getting married on Valentine's Day at City Hall in large numbers, and doing so right alongside gay and lesbian couples. No one batted an eye, looked askance or askew, or didn't wish a newly wedded couple well as they passed by.

    All that anger, hate, and angst just seems to have evaporated (or is so well hidden that we may never see it overtly expressed again as we did in the weeks before Prop 8 passed).

    Anyone else noticing this trend as marriage equality spreads across the states that have adopted it, and those who are still being battled but appear to be won by the pro-equality side of the debate?

    Just curious, and wondering if now that there are significant states with significant populations for whom this is no longer a divisive issue, if that is influencing other people in other states who thought the sky would fall and fire would rain down from heaven.

    Posted by: Keith | Feb 26, 2014 6:06:20 PM

  4. oops, amend my comment to ". . .Prop 8 Supporters can't find a single negative example. . ." sorry for the error in my typing.

    Posted by: Keith | Feb 26, 2014 6:07:32 PM

  5. great summary - thanks Ari!

    Posted by: bkmn | Feb 26, 2014 6:39:13 PM

  6. "Preliminary injunctions are a little different. They are, by definition, preliminary. They happen before trials. They stop bad things from happening so life can go on."

    And yet this one doesn't, because "the injunction was stayed -- or held off from being implemented".

    What's the point of going through all the hullaballoo of the legal arguments for granting a preliminary injunction when it's not going to count anyway?

    Posted by: TKinSC | Feb 26, 2014 7:06:39 PM

  7. Ari, I am really grateful to have you in this world. Your knowledge and discernment brings a huge comfort.

    Posted by: spg | Feb 26, 2014 7:09:48 PM

  8. Ari:

    Realistically, given how conservative the court is, does any chance exist of this ruling being upheld by the 5th Circuit? If we couldn't win there on Adar v. Smith, it's hard to see winning on this issue.

    The one thing we haven't seen in this welcome wave of rulings is a George W. Bush-appointed judge ruling for the freedom to marry. I'm not holding my breath.

    Posted by: Mark | Feb 26, 2014 7:10:09 PM

  9. Justice Garcia
    "Section 32(b) demeans one group by depriving them of rights
    provided for others."

    "Any state law involving marriage or any other protected interest must comply with the United States Constitution." p2

    How are state civil rights laws that prohibit discrimination that don't include (or specifically exclude) LGBT any different?

    Marriage is a civil right. Freedom from discrimination is a civil right. On what basis can states EXCLUDE LGBT in their enacted civil rights protection laws?

    Posted by: SERIOUSLY | Feb 26, 2014 7:11:38 PM

  10. @TKinSC : while it was stayed, that was possibly because it was the first time, and the judge is allowing for the possibility of an appeal turning out differently than he expects. Once the process is complete, there would presumably be a precedent for preliminary injunctions in such cases (Ari can correct this if my non-expert analysis is off for technical reasons).

    Posted by: Bill | Feb 26, 2014 7:47:06 PM

  11. at seriously - there is no such thing as an LGBT.

    These issues have zero to do with trans anyway.

    But hey, at least you didn't refer to us as the "lgbt community"

    Just say GAY!!!!

    Posted by: Homo Genius | Feb 26, 2014 8:04:06 PM

  12. Paul clement, where are you???

    Posted by: Randy | Feb 26, 2014 8:05:41 PM

  13. Ari, why didn't you explain how the decision will affect your bff, Dharun Ravi? That is your main concern in life, isn't it?

    Posted by: Tam | Feb 26, 2014 8:34:27 PM

  14. Homo Genius -

    What you said x 10,000!

    Posted by: Michael | Feb 26, 2014 8:35:43 PM

  15. @
    What a insufferable tool. But hey! You knew that.
    @Michael x10,000

    Posted by: RayRay | Feb 26, 2014 9:25:53 PM

  16. Bbbut, he's an "activist" judge (translation: his opinion is different than God-fearing Xtians like us.)

    Posted by: Joseph Singer | Feb 26, 2014 9:27:13 PM

  17. Excellent! Thanks so much for this!

    Posted by: abel | Feb 27, 2014 12:47:35 AM

  18. @Bill - My point is that preliminary injunctions are issued when a party's likelihood of winning is so strong, and the harm done to it so clear, that it would be more or less unconscionable to force that party not to obtain its requested relief pending trial. If the relief is not going to be granted pending trial regardless of the strength of the argument, then there's no need for a preliminary injunction.

    Posted by: TKinSC | Feb 27, 2014 1:24:28 AM

  19. Mark: The PA trial will be held by a GWB appointee (John Jones III, best known for his complete smackdown of "intelligent design" creationism in Kitzmiller v. Dover).

    Homo Genius: Gender-based marriage restrictions most certainly do affect trans people: in many states, for example, a transgender woman can only marry another woman (because she's viewed as a man) and a transgender man can only marry another man (because he's viewed as a woman).

    There have been cases where marriages involving trans people have been retroactively voided, leaving, in at least one case, survivors being unable to sue for the wrongful death of the spouse.

    None of these absurd complications happen when marriage-licensing requirements are gender-neutral, since neither party's gender is at all relevant to whether or not the couple can marry.

    Posted by: ebohlman | Feb 27, 2014 3:47:34 AM

  20. This really is win-win. If the Fifth Circuit upholds the law, that would bring them in conflict with other circuits and guarantee a hearing in the Supreme Court that would likely bring marriage equality to the entire nation in one fell swoop.

    Posted by: Jere | Feb 27, 2014 9:45:26 AM

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