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.


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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.