Equality fight in Texas heats up with county clerk agreeing ban is unconstitutional

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By Jamie Rubenstein

Texas, with its constitutional ban against same-sex marriage, is becoming a new hotbed for legal skirmishes; in one surprising twist, an Austin county clerk has agreed with LGBT plaintiffs that the state’s ban on marriage equality is unconstitutional, based on last June’s U.S. Supreme Court ruling striking down a key section of the Defense of Marriage Act.

LGBT advocacy groups are heartened by recent pleadings in separate suits in federal district courts in Austin and San Antonio, brought by a group of four same-sex couples challenging the ban.

“There is no rational basis, much less a compelling government purpose, for Texas to deny plaintiffs the same right to marry enjoyed by the majority of society,” reads one of the suits, filed in San Antonio.

In the Austin suit seeking an injunction against Governor Rick Perry and Attorney General Greg Abbott filed in late November, Travis County Clerk Dana DeBeauvoir acknowledged that DOMA violated “the principles of due process and equal protection” for same-sex couples, according to the U. S. Supreme Court ruling.

DeBeauvoir also agreed that Texas’ ban on same sex marriage “imposes inequality on gays and lesbians in exactly the same way that DOMA did…by denying them the basic right to marry.” The response from DeBeauvoir openly states that she only enforces the ban because the state requires her to.

Apart from the Austin and San Antonio marriage suits, still pending before the Texas Supreme Court, are two same-sex divorce cases that have potential implications for future change down the road, lawyers said.

Oral arguments before the Texas high court were heard November 5 and no decisions have yet been made. Though both petitions for divorce date back to 2009, the couples remain in a state of legal limbo while they await those decisions. The Texas Supreme Court had asked attorneys for supplemental briefings over the summer on the impact of the of the U.S. Supreme Court decision on the Windsor/DOMA and Perry/Prop 8 cases.

Attorney General Gregg Abbott has seeking to block Texas courts from granting the divorce petitions, known as JB v. HB and Naylor v. Daly; he intervened in the lower courts “to defend Texas law,” arguing that a trial court could not grant a divorce because any same-sex marriage was “void” under Texas law.

The lawyer for the couples in both of the divorce cases and the two couples in the Austin marriage case, Jason Steed, notes that the Texas Supreme Court has no deadline in which it must make its decision.

Steed said the Texas Supreme Court’s oral argument focused almost entirely on procedural issues such as jurisdiction and the state’s right to intervene in a private divorce proceeding. This suggested, he said, the court’s decision in the divorce cases could be similar to the U.S. Supreme Court’s decision on California Prop 8 which was decided on “standing” without reaching any of the constitutional questions.

In the Naylor divorce case, the Austin court of appeals held that the AG’s office did not have standing to intervene in the uncontested divorce.

“We argued in our supplemental briefing that the U.S. Supreme Court’s decision in Perry has language that supports the Austin court of appeals’ decision,” noted Steed, adding, “oddly the AG’s office ignored the standing issue in its supplemental briefing and simply dismissed the Perry case as irrelevant to the divorce cases.”

Regarding the marriage cases in Austin and San Antonio, Steed said the next step is for the federal court to decide whether to consolidate the cases or to allow them to proceed separately.

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