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Challenge to Texas marriage equality ban headed to Fifth Circuit

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Texas state sealDeLeon v. Perry, the challenge to Texas’ same-sex marriage ban and the state’s refusal to recognize the marriages of same-sex couples performed elsewhere, is headed to the Fifth Circuit Court of Appeals in an early stage of the case. Last month, a federal district court judge issued an injunction against the state’s constitutional ban and its corresponding statutory provisions in the Texas Family Code. The injunction applies statewide, but the order was preliminary, meaning that it will be in effect only until final resolution of the case in the Fifth Circuit. And the judge stayed the effects of the injunction when it was issued, so the state is currently not allowing same-sex couples to marry, nor is it recognizing same-sex couples’ marriages.

The state has chosen to appeal the preliminary injunction, and the appeal has been docketed at the Fifth Circuit. Since the district court judge’s order was only a preliminary move, the case isn’t finished at the district court level. So at the same time the injunction was appealed, the district court has issued a stay of the proceedings in the case until the Fifth Circuit resolves the dispute over the preliminary injunction. The state had requested the stay, and according to the order, it was an unopposed request.

So now, the Fifth Circuit will join several other appeals courts in hearing challenges to same-sex marriage bans. If they agree that the preliminary injunction should stay in place, it would apply to all Texans.

In the two other district court challenges to Texas’ same-sex marriage ban, the state has asked the court to stay those proceedings as well, pending the outcome of DeLeon at the Fifth Circuit. The state urges that “a stay of proceedings would promote judicial efficiency, avoid needless proceedings, and preserve the parties’ and the court’s limited resources.”

Thanks to Kathleen Perrin for these filings

For more information on De Leon v. Perry from The Civil Rights Litigation Clearinghouse, click here.


  • 1. Michael Grabow  |  March 17, 2014 at 8:11 am

    A lot more needless proceedings and limited resources could avoid being wasted if they would stop appealing these decisions.

  • 2. Sam  |  March 17, 2014 at 8:34 am

    Isn't the fifth circuit of appeals the most conservative of all the appeals courts?

  • 3. Scottie Thomaston  |  March 17, 2014 at 8:40 am

    It's made up of very conservative states so I wouldn't be surprised. On the other hand, IIRC, the Fifth Circuit upheld the affirmative action plan in Fisher v. Texas, leading to the Supreme Court's decision. (The case is back in the Fifth Circuit now.) Not sure if that matters, but it seemed like a more "liberal" decision.

  • 4. JimT  |  March 17, 2014 at 8:50 am

    Seven same-sex couples in Arizona filed a federal lawsuit last Thursday challenging Arizona’s ban on gay marriage, arguing that it violates the equal protection clause of the U.S. Constitution, court documents showed. The lawsuit was filed in U.S. District Court in Phoenix by seven same-sex couples and two people whose same-sex partners had died. It is the latest of a series of legal actions across the nation challenging such state bans.

  • 5. Ranjit  |  March 17, 2014 at 8:50 am

    Procedurally, wouldn't a fast "reversal" by the 5th and a favorable decision by the 4th be the best case scenario as it would force SCOTUS to act sooner than they want to (by all signs) for a final word on the matter.

    Otherwise we are in for another three years of State by State, circuit by circuit eternally stayed verdicts.

  • 6. Scottie Thomaston  |  March 17, 2014 at 9:30 am

    There's already an Eighth Circuit case upholding Nebraska's marriage ban, so there's no need for us to lose any cases in order to get to the Supreme Court.

  • 7. Zack12  |  March 17, 2014 at 10:11 am

    Pre-Windsor but you're right, there is already a ruling upholding state bans. The Supreme Court can already hear a case next term if they want to.

  • 8. Scottie Thomaston  |  March 17, 2014 at 10:20 am

    Well the fact that it's before Windsor doesn't matter for purposes of a circuit split. I mean, Windsor didn't directly change the outcome in that Eighth Circuit case, so it still counts. There are some SCOTUS cases that recount the history of whatever issue they're deciding, and they point to circuit splits on that particular issue, sometimes even going back ten years or so.

    But aside from all that, I sort of have doubts that a split is really needed at this point. With cases at four or five different appeals courts, SCOTUS will either have to decide the issue soon or deny cert on some decisions where same-sex couples won on appeal, which would mean it would apply across whatever circuit court the case came from. I'd think they wouldn't want to let the issue be "decided" that way ultimately. (But this is just a guess.)

  • 9. Zack12  |  March 17, 2014 at 10:28 am

    It's hard to guess what they would do at this point.
    I could see them punting as long as possible if rulings go our way but who knows?

  • 10. Ragavendran  |  March 17, 2014 at 11:00 am

    Also, the 5th circuit's decision will be regarding a preliminary injunction, not a final judgment, which makes it different from all other recent decisions. If the 5th reverses, they might do so on (largely) procedural grounds saying that a preliminary injunction wasn't really necessary while the case takes its course towards a possible trial and a final judgment. A reversal this way would also allow SCOTUS, if they take up the appeal, to uphold or reverse the 5th's decision without addressing the merits of the case to the extent they would have to, were it to be a final judgment that was being appealed. (It would be challenging for SCOTUS to rule on a preliminary injunction without tipping their hat, unless they issue a one-line ruling like they did on the stay issue in Kitchen. For this reason, it is likely they won't take up an appeal from the 5th, no matter how they decide. They will probably at least wait for the final judgment, and even then, might not take up the appeal.)

  • 11. Rancor  |  March 17, 2014 at 6:44 pm

    Homosexual equality and marriage hurts all segments of society because it is a sham. A lie. A diversion from the truth about homosexuals, their hyper-promiscuity in and out of "relationships" and the homosexual attacks on medical professionals and researchers who have attempted to sound warnings about their toxic, disease spreading behaviours. Researchers in the UK, Sweden, Denmark, France, The Netherlands, USA, Germany and Switzerland have been systematically targeted, harassed and intimidated to undermine, stop and prevent the facts revealed in their research programmes. This research has shown that 1st world Homosexuals are the primary transmission sector of ALL STDS (including HIV, herpes, gonorrhea, syphilis and chlamydia) in developed nations.. Due to the huge overuse of antibiotics by HIV infected homosexuals, new and virulent strains of tuberculosis, pneumonia, measles, CRE's (carbapenem-resistant Enterobacteriaceae) to name a few. Heterophobic activists like to use African STD numbers to try divert attention, but this is very easy to disprove and debunk.

  • 12. Michael Grabow  |  March 18, 2014 at 6:57 am

    Oh ok, cool.

  • 13. Keith  |  March 18, 2014 at 7:38 am

    40 some years ago I heard the same nonsense being said about the African Americans and "poor white trash" living on the other side of the railroad tracks. I've also seen comments similar to yours posted by different anonymous entities across the Internet by other right wing trolls.

  • 14. KarlS  |  March 18, 2014 at 7:39 am

    You're an amusing little prick. Tell your Uncle Dad we said hi.

  • 15. ebohlman  |  March 18, 2014 at 7:49 am

    I really loved the one about antibiotic overuse leading to new strains of measles.

  • 16. Justpassingthough  |  March 18, 2014 at 8:02 am

    I love the conspiracy theory.
    Once you have to blame a worldwide conspiracy of scientist for your lack of information/argument/coherency, you've already lost.

  • 17. Reformed  |  March 18, 2014 at 8:50 am

    activists like to use . . . , but this is very easy to disprove and debunk. What, that they like to use . . . to divert attention?

    Easy to disprove and debunk? (whatever you are referring to). I suppose your are a skilled researcher . . . somehow I doubt that, or you would know that hardly anything related to any of your assertions would be easily proven or debunked.

    Plagiarism is easy proven, however. So careful with the cut and paste.

  • 18. Oranian  |  March 17, 2014 at 8:45 pm

    Why do angry homophobalists continue to promote discrimination-based strife? Why are they ripping and tearing the social fabric with their pseudo-Christianity of homophobia? Why do they smear Jesus' face with the darkness and shame of homophobia? Do they not know that revilers are going to hell? (1 Cor. 6:10)

  • 19. Marriage Equality Round-U&hellip  |  March 18, 2014 at 6:52 am

    […] USA, Texas: The marriage equality case in the state is heading to the fifth circuit. full story […]

  • 20. Rancor  |  March 18, 2014 at 10:11 am

    Promiscuity among so-called Homosexual "Couples":

    Even in those homosexual relationships in which the partners consider themselves to be in a committed relationship, the meaning of "committed" typically means something RADICALLY DIFFERENT from normal marriage.

    In The Male Couple, authors David P. McWhirter and Andrew M. Mattison reported that in a study of a hundred-fifty-six males in so-called homosexual "relationships" lasting from one to thirty-seven years,

    Only seven "couples" claimed to have a totally exclusive sexual relationship, and these men all have been together for less than five years. Stated another way, all "couples" with a relationship lasting more than five years have incorporated some provision for outside sexual activity in their relationships.

    In Male and Female Homosexuality, M. Saghir and E. Robins found that the average male homosexual live-in relationship lasts between two and three years.

  • 21. Rancor  |  March 18, 2014 at 10:12 am

    From the CDC website:
    "Sexually Transmitted Diseases (STDs) have been INCREASING among GAY and bisexual men. Recent INCREASES in syphilis cases have been documented across the country. In 2008, men who have sex with men (MSM) accounted for 63% of primary and secondary syphilis cases in the United States. MSM often are diagnosed with other bacterial STDs, including chlamydia and gonorrhea infections.

  • 22. Rancor  |  March 18, 2014 at 10:13 am

    From the CDC website:
    Gay and bisexual men can be infected with HPV (Human Papillomavirus), the most common STD in the United States. Some types of HPV cause genital and anal warts and some can lead to the development of anal and oral cancer. Men who have sex with men are 17 times more likely to develop anal cancer than heterosexual men. Heterophobes who are HIV-positive are even more likely than those who are uninfected to develop anal cancer."

  • 23. Rancor  |  March 18, 2014 at 10:17 am

    From the CDC website:
    "Gay and bisexual men are at increased risk for certain sexually transmitted diseases (STDs), including Hepatitis A, B and C, which are contagious liver diseases. Approximately 10 % of new Hepatitis A and 20% of all new Hepatitis B infections in the United States are among men who have sex with men. Many men have not been vaccinated against viral hepatitis, despite the availability of safe and effective vaccine. In addition, CDC has investigated several outbreaks of Hepatitis C among HIV positive gay men. In addition, CDC has investigated several outbreaks of Hepatitis C among HIV positive gay men."

    From the CDC website:
    "The overall number of new HIV cases – referred to as HIV incidence – has remained relatively stable at approximately 50,000 new cases annually. However, the number of new cases among people aged 13-29 years increased by 21 percent from 2006 to 2009. The rise in HIV incidence among young adults was FUELED by a 34 percent increase in HIV infections AMONG young GAY and bisexual men."

  • 24. Rancor  |  March 18, 2014 at 10:19 am

    CDC: 20% of Gay Men Are HIV-Positive, but Nearly Half Don’t Know It.

    Recent data from the Centers for Disease Control and Prevention (CDC) show that 1 in 5 sexually active gay and bisexual men in America are HIV-positive but that 44% of them don’t know it.

    More than 8,000 self-identifying gay and bisexual men (or, as the researchers call them, MSM, for men who have sex with men) were tested by CDC workers in the 21 American cities with the highest infection rates. The gay population in Baltimore had the highest rates of HIV infection, at 38%, while Atlanta scored lowest, at 6%.

    The highest absolute number of infections occurred in white MSM, primarily those between the ages of 30 to 39. However, young black gay and bisexual men (aged 13 to 29) had the highest rates of HIV infection per capita, and young Hispanic MSM also had disproportionately high rates of infection. (More on ‘It Gets Better’: Wisdom From Grown-Up Gays and Lesbians to Bullied Kids)

    There is no denying that the highest infection rates occur in gay and bisexual men. Although they account for 4% of the male population in the United States, their HIV-infection rate is 44 times the rate of heterosexual men. African-American men and men under 30 years old were the two groups least likely to be aware of their status.

    When data on the two groups are broken apart, however, HIV-infection rates in bisexual men are lower than in gay men, according to a study in the American Journal of Public Health.

  • 25. Rancor  |  March 18, 2014 at 12:10 pm

    The British slang for cigarettes is a very accurate and appropriate word describing homosexuals because of their toxic, hyper-promiscuous behaviour.

    The practice of both (smoking and homosexuality) spreads and causes diseases that would otherwise not exist.

    The practice of both (smoking and homosexuality) is endorsed via the half truths, lies and delusions of it's practitioners.

  • 26. Policy and Legal Update &&hellip  |  April 8, 2014 at 10:23 am

    […] TEXAS • On 7 March 2014, in Cleopatra De Leon, et al., v. TX Governor Rick Perry et al.,a federal class action lawsuit for all TX couples challenging the 2003 law and the 2005 TX constitutional ban on marriage inside and outside TX, the preliminary injunction against the TX same-gender civil marriage bans while the district court case is proceeding was appealed by TX to the 5th Circuit U.S. Court of Appeals, and the district court case proceedings were stayed pending the appeal ruling.  •  MEUSA Summary  •  News Source […]

  • 27. Alex  |  May 14, 2014 at 4:50 pm

    HAHAHA Rancor, your made up shit and lack of understanding of the data only proves one thing… you are a frustrated queen wno nobody wants

  • 28. Equality On TrialREAD IT &hellip  |  July 29, 2014 at 6:08 pm

    […] v. Perry is finally here after several delays. The challenge to Texas’ same-sex marriage ban had been appealed to the Fifth Circuit back in February, after the federal judge overseeing the case struck down the […]

  • 29. Equality On TrialFifth Ci&hellip  |  August 7, 2014 at 1:33 am

    […] v. Perry, a challenge to Texas’ same-sex marriage ban, is in the Fifth Circuit Court of Appeals after state officials appealed the federal judge’s […]

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