Attorneys for two gay couples are asking a federal appeals court to allow same-sex marriages to begin in Texas immediately.
In a motion filed Thursday, attorneys for the couples asked the 5th U.S. Circuit Court of Appeals to lift a district judge’s stay of his 2014 decision striking down Texas’ marriage ban.
If the 5th Circuit agrees to lift the stay, it would clear the way for same-sex marriages to begin in Texas. If the 5th Circuit doesn’t lift the stay for all same-sex couples, the motion asks that it be lifted for the limited purpose of establishing the parental rights of plaintiff Cleopatra DeLeon, whose wife, Nicole Dimetman, is expecting a child in March.
The motion cites the U.S. Supreme Court’s refusal to halt same-sex marriages in both Alabama and Florida, after federal district judges struck down bans in those states. The high court will hear appeals in April from four states where same-sex marriage bans were upheld.
“The Supreme Court’s actions indicate that the stay of the District Court’s decision is no longer necessary,” the motion states. “The District Court expressly found that the denial of the fundamental right to marry causes irreparable harm. Despite this, Plaintiffs continue to suffer irreparable harm—only now the potential consequences are graver. As discussed further below, Plaintiffs De Leon and Dimetman are expecting a child any day, and the State’s refusal to recognize their marriage risks grave harm both to the Plaintiffs and the child.”
Neel Lane, an attorney for the couples, said in a statement he remains confident the 5th Circuit will rule in favor of marriage equality.
“But same-sex marriages are proceeding across the South and Southwest, while Texas remains the most populous state where gays and lesbians are deprived of that right,” Lane said. “Today we urge the Fifth Circuit to remedy that omission immediately.”
Lane told the Observer the motion would be considered by the same three-judge panel that heard oral arguments in the case last month, which many observers said appeared likely to strike down the ban.
DeLeon and Dimetman said they are “overjoyed and incredibly excited” about the birth of their child.
“However, we can’t help but be disappointed that marriage equality has not been recognized by the great State of Texas,” they said. “This adds additional anxiety due to the fact that our child has two parents but Texas is denying her one of them. Should the worst occur, our child would be a legal stranger to Cleo, and become an orphan.”
Mark Phariss said he and his partner, Vic Holmes, who are the other plaintiff couple, “hope and pray” that the 5th Circuit will lift the stay.
“No straight couple would want to walk in our shoes—to have to wait over 17 years to marry the one we love,” Phariss said. “We shouldn’t have to wait any longer.“
U.S. District Judge Orlando Garcia struck down Texas’ marriage ban in February 2014, but stayed his decision pending the state’s appeal to the 5th Circuit. In December, Garcia denied a motion to lift the stay — but that was before the Supreme Court allowed marriages to begin in Alabama and Florida. The high court has also declined to hear appeals of federal appeals court decisions striking down marriage bans.
Texas is one of only 13 states where gay couples cannot marry.
Read the full motion below.