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State judge in Texas finds same-sex marriage ban unconstitutional

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Texas state sealA state judge has ruled that Texas’ same-sex marriage ban is unconstitutional. This is the second decision striking down the state’s ban – the first was a federal court ruling which is on appeal to the Fifth Circuit Court of Appeals.

The decision came in a case of a couple seeking to divorce in the state. Bilerico reports:

A state district judge has ruled that Texas’s 2005 voter-approved marriage discrimination amendment is unconstitutional. The ruling comes two months after a federal judge reached the same conclusion in a separate case.

The Houston Chronicle reports:

Judge Barbara Nellermoe, in a five-page ruling released Tuesday, pinpointed three portions of the Texas Family Code as unconstitutional, as well as Section 32 of the Texas Constitution. Nellermoe wrote that “in a well-reasoned opinion by Judge Orlando Garcia, the federal district court found that a state cannot do what the federal government cannot – that is, it cannot discriminate against same-sex couples.”

The latest ruling comes in response to a same-sex divorce lawsuit that was filed in Bexar County in February by Allison Leona Flood Lesh and Kristi Lyn Lesh, who were married in Washington, D.C., in August 2010.

Kristi Lesh became pregnant through artificial insemination during the marriage and gave birth Feb. 19, 2013. Her attorney argued that because Allison Flood Lesh isn’t the biological or adoptive parent, Kristi Lesh should retain sole custody. Allison Flood Lesh is seeking to split custody of the child.

Because Texas doesn’t recognize same-sex marriages, there’s also no legal avenue available to pursue a divorce.

As expected, Greg Abbott — the state’s extremely anti-gay Republican attorney general, who also happens to be running for governor — plans to appeal the ruling.

The opinion can be read here, via Kathleen Perrin and Equality Case Files.


  • 1. Jim Kane  |  April 25, 2014 at 8:51 am

    Gee, this is the second decision in favor of Marriage Equality coming out of my hometown San Antonio. Maybe Perry, Abbott and the rest of their cronies will vote to expel us from Texas! Please. Oh, wait. We have the Alamo.

  • 2. Mitchell  |  April 26, 2014 at 6:43 pm

    But San Antonio is not exactly Austin. When the city wanted to pass a measure that would simply outlaw work place discrimination for gay people, thousands (and I mean THOUSANDS) of locals showed up with the most hateful signs to protest. And they weren't out of towners either. My friend lived there at the time and said the amount of signs he saw by neighbors protesting the measure was heartbreaking. Not to mention the number of city council members who are very openly anti gay and supported for it

  • 3. B Z  |  April 25, 2014 at 9:19 am

    Is there a stay?

  • 4. Rik  |  April 25, 2014 at 9:21 am


  • 5. Michael Grabow  |  April 30, 2014 at 7:52 am

  • 6. weaverbear  |  April 25, 2014 at 9:44 am

    San Antonio, El Paso and Austin. Three positive things I can say about Texas!

  • 7. Dann  |  April 25, 2014 at 9:57 am

    I live in the great city of Dallas. Dallas county is very liberal and always votes democratic I can't wait for all this to be over.

  • 8. Dann  |  April 25, 2014 at 10:27 am


  • 9. bythesea  |  April 25, 2014 at 4:11 pm

    No. You had it right the first time. 😛

  • 10. Dann  |  April 25, 2014 at 5:09 pm

    Thank you bythesea.

  • 11. Dr. Z  |  April 25, 2014 at 6:48 pm

    I lived in Dallas back in the mid-1980s. I worked on the campaign for Bill Nelson, president of the Dallas Gay Alliance. He performed our commitment ceremony in 1986. Rest in peace.

  • 12. Dr. Z  |  April 25, 2014 at 6:49 pm

    * campaign for city council

  • 13. Circle505  |  April 26, 2014 at 6:45 pm

    I live in San Antonio and there's some anti gay pockets. Catholic presence is huge in the city. Not YET a gay friendly haven

  • 14. Dr. Z  |  April 25, 2014 at 10:09 am

    The judge found that Texas created a suspect classification of the children of SSM, then impermissibly deprived them of their constitutional rights. That's a new line of legal reasoning I haven't seen before.

  • 15. Eric  |  April 25, 2014 at 12:00 pm

    The anti-gay have been telling everyone to think of the children. This legal argument is the logical conclusion of their request.

  • 16. sfbob  |  April 25, 2014 at 12:52 pm

    When people in general…and judges in particular…actually DO think of the children, we win. Those on the Right who have historically "thought of the children" were thinking only of their own children as opposed to the children of gay or lesbian parents or of their own children on the assumption that some might grow up to be LGBT adults.

  • 17. Dr. Z  |  April 25, 2014 at 4:27 pm

    They don't even think of their own children. They think of abstract, idealized children who don't exist.

  • 18. grod  |  April 25, 2014 at 1:44 pm

    Dr. Z Very useful thinking, as it has utility (though not argued) in the Utah case on appeal.

  • 19. Dr. Z  |  April 25, 2014 at 4:27 pm

    Hey Ragavendran, tack this onto the list for your SCOTUS brief. 🙂

  • 20. Sagesse  |  April 25, 2014 at 8:30 pm

    Been waiting for this for a long time… American law does not punish children for who their parents are. The same discussion has been had when debating immigration reform. Children of LGBT-led families have been invisible, many too young to speak for themselves. Well, the invisibility part is changing.

    Opponents can no longer pretend they don't exist… well, NOM probably can.

  • 21. Dr. Z  |  April 25, 2014 at 12:01 pm

    The Alaska SC just ruled as unconstitutional a law that granted a property tax break that wasn't extended to gay couples. Next step in appeals is SCOTUS, but I'd bet they won't grant cert.

    This may the first post-Windsor case to make it to SCOTUS, but it doesn't deal directly with the right to marry.

  • 22. Ragavendran  |  April 25, 2014 at 12:04 pm

    Awesome. The other case, also not targeting the ban, Harris v. Millennium Hotel (survivor benefits) is coming up for oral argument at the Alaska Supreme Court next month (May 13) and this ruling bodes well for that case! This case took about 18 months from oral argument to decision, and if that's any indication, Harris may not be ready for a SCOTUS appeal until 2015.

  • 23. Ragavendran  |  April 25, 2014 at 12:22 pm

    With regards to the SCOTUS prospect, I don't think that can happen, because as far as I skimmed the opinion, there is no federal question. Only the Alaska Constitution is referenced everywhere, not the federal Constitution…

  • 24. Zack12  |  April 25, 2014 at 12:39 pm

    Agree with you on this. Nothing I've seen indicates this could have been appealed any higher.

  • 25. Zack12  |  April 25, 2014 at 12:17 pm
    South Dakota is joining the list of states with lawsuits on their ban.
    Only AK,MT and ND remain.

  • 26. Pat  |  April 25, 2014 at 1:56 pm

    As was mentioned recently, also OH, MS, TN, NE and KS also don't have lawsuits directly targeting the marriage ban.

  • 27. Dr. Z  |  April 25, 2014 at 4:36 pm

    When we win all these district cases and the bigots move to the appellate level it's going to be like the Three Stooges all trying to get thru the doorway at the same time

  • 28. davep  |  April 25, 2014 at 4:39 pm

    … how vivid !

  • 29. Dr. Z  |  April 25, 2014 at 6:57 pm

    Starring Brian Brown as Moe, John Eastman as Curly, and Maggie Gallagher as Larry.

  • 30. Lymis  |  April 27, 2014 at 11:40 am

    Maggie strikes me as more of a Shemp.

  • 31. david  |  April 25, 2014 at 12:27 pm

    any news out of the 6th circuit, boy it must be the rough winter causing this circuit to move slow. with bot sides in Deboer v Snyder wanting expedited case…. I am beginnining to wonder if it will even be heard by Sept

  • 32. Ragavendran  |  April 25, 2014 at 1:12 pm

    Well, the whole thing is a mess. Michigan wants expediated initial en banc hearing, the Plaintiffs want an expedited regular 3-judge hearing, Plaintiffs in the Ohio appeal were allowed to file an intervening amicus brief supporting the DeBoer Plaintiffs' opposition to initial en banc hearing (but asking the Court not to put their appeal on hold and to grant them initial en banc hearing as well, should the Court decide to grant Michigan an initial en banc hearing). More recently, Roberta Kaplan wants to intervene in the case and supports initial en banc hearing for a different reason than the state (to rule that heightened scrutiny should apply), and the Plaintiffs oppose her intervention.

    Most recently, new Plaintiffs Erin and Shayla Blankenship seek to intervene in the Michigan appeal:

    As for the Ohio appeal, Plaintiffs there moved (unopposed) to file an oversized response brief and were denied that request, because the Defendant's opening brief was of a normal size. And Roberta Kaplan has filed a lengthy motion to intervene in this appeal as well. Also, yesterday, the Plaintiffs filed their response brief (20 days ahead of their deadline). The optional reply brief from Defendant Himes is now due 17 days from yesterday, which falls on May 11. This speeds up the briefing schedule considerably. I hope the EoT team gets a hold of the motion to intervene as well as the response brief soon and posts it here.

  • 33. Mike in Baltimore  |  April 25, 2014 at 3:01 pm

    May 11 is a Sunday, so the brief would be due on Monday, May 12.

  • 34. DaveM  |  April 25, 2014 at 1:13 pm

    Right now we're in a lull. March and April were very exciting for equality – now both sides are lawyering up and writing their briefs. May 30 is the deadline for the last brief in Obergefell, the death certificate case. June 26th is when final briefs are due in DeBoer, Tanco, and Love (Bourke).
    So no, probably nothing will get heard until August. That's just the way it is. But even then, expect decisions from the 10th (Bishop, Kitchen) and the 4th (Bostic) by about then, which will undoubtedly influence the 6th.
    And then appeals to SCOTUS, staying any circuit decisions, with cert petitions in by November/December means a March/April 2015 oral argument and a June 2015 decision.
    As much as we'd like to crash the boards here – it's June 24, 2015. Circle that date on your calendar.

  • 35. Marcus  |  April 26, 2014 at 6:48 pm

    June 24th 2015 for marriage equality across the country you mean?

  • 36. Ragavendran  |  April 25, 2014 at 1:27 pm

    BREAKING: Sixth Circuit GRANTS stay of the narrow Tennessee preliminary injunction to the Plaintiff couples. In its per curiam opinion issued today, the Court points to Judge Black's opinion where he stayed his order pending appeal in Henry and observes:

    In the present case, as in Henry, we find that the public interest requires granting a stay and transferring this case to a merits panel for expedited consideration––so that the merits panel can assess whether a stay should remain in effect, and address the substantive issues in this case. Defendants’ motion to stay the district court’s order is GRANTED, and this case shall be assigned to a merits panel without delay. IT IS SO ORDERED.

    But the reasoning here is so flawed – Judge Black's stay in Henry was statewide and did not apply to the specific Plaintiffs of that case as it applies to their birth certificate claims. Here, the injunction is very narrow and only for the Plaintiff couples, and so the potential harm upon a possible future reversal is negligible. Shocking, coming from two Clinton appointees and a Carter appointee!

    And what would this stay mean to the newborn baby (Emilia) of the Tanco-Jesty couple? Will her birth certificate now be revoked?

  • 37. Michael Grabow  |  April 25, 2014 at 1:59 pm

    Oh, come on! I really cannot wait until this is all in the past.

    "We've decided to rule that a man named Charles Winthrop is permitted to eat four m&m's. Wait, he's gay? THE DECISION MUST BE STAYED!!"

  • 38. Pat  |  April 25, 2014 at 2:03 pm

    Wow, even just recognizing the marriages of the sole plaintiffs was too much to ask!? This is getting ridiculous.
    (as a side note, I was wondering: how do you format text to make it appear in bold or italics?)

  • 39. Ragavendran  |  April 25, 2014 at 2:06 pm

    Ridiculous is an understatement. Very poor and blatantly flawed reasoning by three democratic appointees is very disturbing. I thought we could reasonably assume that the democratic appointees on the Sixth Circuit would be on our side. Now that has become a questionable assumption.

    You can use HTML formatting tags in the comments – they work:
    I use the b tag for bold and the i tag for italics.

  • 40. Pat  |  April 25, 2014 at 2:43 pm

    Thanks 🙂
    Though the ridiculousness of that 6th circuit stay is quite on par with the ridiculousness of the 9th circuit's slowness!

  • 41. Zack12  |  April 25, 2014 at 2:53 pm

    There are going to be conservative Democrats mixed in with the more liberal ones as well.
    Still, this simply highlights the injustices we face and will continue to face until the Supreme Court steps in.

  • 42. Ragavendran  |  April 25, 2014 at 3:21 pm

    In fact, this decision is so flawed that I wouldn't be surprised if the Plaintiffs appeal right now to SCOTUS and ask it to vacate the stay. I doubt that Kagan would stand for this nonsense. And even if it gets referred to the full Court, Kennedy, with the newborn child in mind, will likely vote with the liberal four to vacate the stay. This is so different from Kitchen in that this is a preliminary injunction, and only grants marriage recognition for three couples. If not, I hope that the expedited merits panel (the one referred to in the order) will have the sense to quickly reverse.

  • 43. Lymis  |  April 27, 2014 at 11:44 am

    I'm not a lawyer, but as I read their decision, it basically boils down to:

    There are 4 critical things that must be met in order to justify a stay. Looking at them:
    1. Yup, no question.
    2. Gotcha, easy to apply that one.
    3. No question here, good to go.
    4. Pretty solidly meets this one.

    Therefore, because things are so unclear, we're going to punt and stay the ruling. Because, apparently, adding gay to ANY legal question throws everything about it up in the air.

  • 44. Tim  |  April 27, 2014 at 1:13 pm

    Judge Guy was appointed by Reagan. So 2 Dem, 1 Republican. That aside I don't see this as foretelling on the merits of the case.

  • 45. Ragavendran  |  April 27, 2014 at 1:21 pm

    In the Sixth Circuit, there's a Judge R. Guy Cole, a Clinton appointee, and a Judge Ralph B. Guy, a Reagan appointee. I thought "Guy" referred to the first one (the first Guy I came across on the Wikipedia list), but if it's a last name, it's probably the second one. I stand corrected, thank you.

  • 46. sfbob  |  April 25, 2014 at 2:22 pm

    IIRC, the defendants didn't even ask for a stay as it applied to the plaintiffs. I can't imagine why the 6th Circuit would go beyond what the state had requested.

  • 47. Ragavendran  |  April 25, 2014 at 2:29 pm

    They did. Once the district court judge refused their request, on March 25, the State filed a motion to stay the preliminary injunction as it applied to the named Plaintiffs with the Sixth Circuit. The Plaintiffs filed a response in opposition on April 4.

  • 48. sfbob  |  April 25, 2014 at 3:12 pm

    So the state is being vindictive because they didn't get their way initially. I get it now. (sigh)

  • 49. clark  |  April 26, 2014 at 6:26 am

    I live in AK…it's kinda full of crazies here. I believe we were the first state to pass a constitutional ban on marriage for gay people. IIRC it was because of our 'proximity' to Hawaii where the first court decision legalizing SSM came from. I swear everyone thinks Hawaii is much closer to AK than it actually is because of maps. It is ironic that Alaska is surrounded by marriage equality now. Hawaii, Canada, Washington, Oregon, California.

    My husband and I married in Washington. Despite the fact that I am annoyed AK doesn't recognize our union yet, I don't really think a court case is needed here. We are in the 9th Circuit…there are already a handful of judgments in our favor in the 9th going through appeals that are years ahead. California, Washington, Hawaii and Oregon will drag us into the 21st century whether we like it or not.

    Also we don't have state income tax, so married SS couples already only file federal taxes. That actually makes the property tax judgment very significant, as it is the only state tax Alaskans pay. The writing is definitely on the wall.

  • 50. clark  |  April 26, 2014 at 6:45 am

    As an aside, I think Alaska is the last state or one of the last couple states to never have elected an out gay politician. Was MS still on the list? I know more than a couple gay public servants, but none are out.

    An appointee from the Alaska Democrat party asked me if I wanted to run for office, knowing that I am very much out. It's kind of awesome to be asked, but it still made me laugh. The bridge to nowhere is still a bit to far for Alaska, lol. Alaska is not ready to elect a pro-choice, pro-gay marriage, Agnostic, pro-obamacare gay guy… yet.

  • 51. Terry  |  April 26, 2014 at 12:08 pm

    "Alaska Democratic party"

  • 52. Marcus  |  April 26, 2014 at 6:53 pm

    You could still get politically involved and have GREAT influence without actually being on a ballot.

  • 53. Zack12  |  April 27, 2014 at 12:02 am

    Indeed you can. My husband and I donated money to a PAC that helped primary bigoted Democrats here in NY after what happened in 09.
    Small part I know but every bit helps in the fight for equality.

  • 54. Sagesse  |  April 27, 2014 at 7:15 am

    Judge denies motion by anti-gay group to intervene in Fla. marriage challenge [LGBTQnation]

    Suggests they file an amicus brief. Judge McShane could go the same way with NOM in Oregon… but then NOM wouldn't be able to move for the judge to recuse himself, thus depriving the world of the entertainment value of the performance by Brian Brown and John Eastman. Tough choice.

  • 55. Ragavendran  |  April 27, 2014 at 8:56 pm

    Here's that order. Another order issued the same day also denied intervention by one Chris Sevier:

    "Chris Sevier has moved to intervene, apparently asserting he wishes to marry his computer. Perhaps the motion is satirical. Or perhaps it is only removed from reality. Either way, the motion has no place in this lawsuit. Mr. Sevier has alleged nothing that would support intervention. See Fed. R. Civ. P. 24."

    On a more serious note, briefing on the preliminary injunction motion in these consolidated cases is due to be completed by the end of May. A hearing could be scheduled as early as June.

  • 56. grod  |  April 27, 2014 at 8:22 am

    Sagesse: "Judge Shelby could go the same way with NOM in Oregon". Did you mean District Judge Michael McShane? [Geiger v. Kitzhaber and Rummell & West v. Kitzhabe ]. With so many cases and therefore Judges, I find it had to keep their names straight. ]

  • 57. Sagesse  |  April 27, 2014 at 9:37 am

    Yes, I meant McShane. Edited my previous post.

  • 58. Tim  |  April 27, 2014 at 10:59 am

    Could going to the Utah Supreme Court cause a delay in the decision of Judge Kimball's federal court case?

  • 59. Ragavendran  |  April 27, 2014 at 11:13 am

    For sure. But the decision to nudge the Utah Supreme Court lies with Judge Kimball. He has before him a preliminary injunction motion and two motions to certify questions to the Utah Supreme Court. Kimball has been silent since the March 12 hearing. I don't know how much longer he wants to remain silent. If his intention is to avoid confusion of conflicting rulings as the article says, he should probably just sit on these motions and wait for the 10th Circuit to rule. Otherwise, he could grant either motion asking the Utah Supreme Court to weigh in, which would also delay the case.

    Also, it probably won't make sense for him to both grant the preliminary injunction, ordering Utah to immediately recognize the marriages (which would almost certainly trigger another "emergency" appeal/stay with the 10th Circuit), and simultaneously also grant one of the motions to have the Utah Supreme Court weigh in – if he has made up his mind about the preliminary injunction, why ask the Utah Supreme Court for clarification? But this is one of those examples where the effectiveness of the parallel court system is put to the test. Both state and federal courts want to be respectful of each other and avoid, at all costs, conflicting rulings.

    I agree with the bold statement in one of the Plaintiffs' recent filings that "it is time for the Court to issue a preliminary injunction based Plaintiffs’ federal claims, putting an end to Defendants’ use of this litigation to support its legal claims in other courts. Nothing short of a ruling based on the federal Constitutional claims will bring a prompt end to Defendants’ ongoing and brazen violation the rights of Plaintiffs and other legally married same-sex couples under the federal Constitution."

  • 60. grod  |  April 29, 2014 at 5:24 am

    Ragavendran: January 29: A lawsuit filed by the ACLU of Utah on behalf of four same-sex couples who are contesting the state’s refusal to recognize their marriages has been moved from state court to federal court. The Utah Attorney General’s Office filed a notice on Tuesday, moving the case from the 3rd District Court in West Jordan to the U.S. District Court for Utah. The Attorney General’s Office said the lawsuit alleges federal civil rights violations, which are more appropriately addressed in federal court. Now the AG wants the State's Supreme Court to become involved and the federal courts to delay until the Utah Supremes rule. In part this has been the position all along of the plaintiffs as asserted by their lawyers [ACLU], asking federal judge D. Kimball to certify questions for the Utah Supreme Court.

  • 61. Lynn E  |  April 27, 2014 at 1:04 pm

    I think that is precisely what Judge Kimball is doing. I think he sees the writing on the wall, and if the 10th upholds the December ruling, this case will be moot. I think he just doesn't want his name attached to a ruling on this issue.

  • 62. David  |  April 29, 2014 at 8:51 am

    "Kristi Lesh became pregnant through artificial insemination during the marriage and gave birth Feb. 19, 2013. Her attorney argued that because Allison Flood Lesh isn’t the biological or adoptive parent, Kristi Lesh should retain sole custody. Allison Flood Lesh is seeking to split custody of the child."

    Did I read that right? One gay person is using the fact that her wife is gay against her? I'm disgusted! I guess we have scum in our ranks, too.

  • 63. JayJonson  |  April 29, 2014 at 9:11 am

    Straight people often do ugly and destructive things when they are in the midst of a divorce; no reason to think that gay people will not also do those things. Wish it were different.

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  • 65. Attorney General Promises&hellip  |  July 14, 2014 at 1:32 pm

    […] trial court judge has ruled that a ban on same-sex marriage is unconstitutional. Earlier this year, two judges in Texas–a federal district court judge in San Antonio and a state district court judge in […]

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