Gay couples shouldn’t plan on tying the knot in the Lone Star State before late June, according to two Texas-based attorneys challenging same-sex marriage bans in federal court.
Daniel McNeel Lane Jr., who represents two same-sex couples challenging Texas’ marriage ban, previously predicted the 5th U.S. Circuit Court of Appeals would bring marriage equality to the state before Easter.
But Lane said this week he now believes the 5th Circuit is waiting for the U.S. Supreme Court, which will hear oral arguments later this month and is expected to rule by the end of June in marriage cases from four states.
“I thought that the 5th Circuit would want to have its voice heard … and we would not have to have the Supreme Court drag us kicking and screaming like bitter-enders to marriage equality, but it appears that’s the way it will have to occur,” said Lane, a partner with Akin Gump Srauss Hauer & Feld in San Antonio. “In a case involving a fundamental constitutional right, the court shouldn’t be waiting around. The court should have its voice heard, and it’s a pity that that hasn’t happened yet.”
A three-judge panel of the 5th Circuit heard oral arguments in marriage cases from Texas, Louisiana and Mississippi on Jan. 9. Seven times in the last year, federal appeals courts have heard same-sex marriage cases, but only once has it taken more than three months for them to rule after oral arguments.
Lane predicted that even if the Supreme Court issues a nationwide ruling in favor of marriage equality, as most experts predict, it could take a while for Texas comply. He said county clerks in places like Austin and San Antonio likely would begin issuing marriage licenses to same-sex couples right away, but others would wait until the 5th Circuit issues a corresponding decision in the Texas case.
“I think that there will be some marriages in Texas this summer, and probably some pushback this summer,” Lane said. “Marriage equality in Texas this summer could be a hot mess, but who doesn’t like a hot mess?”
Kenneth D. Upton, Jr., senior counsel at Lambda Legal in Dallas, agreed that the 5th Circuit is unlikely to rule before the Supreme Court. Lambda Legal represents plaintiffs in the Louisiana case.
“I think if they were going to do it, they would have done it by now,” Upton said, adding that the 5th Circuit panel is delaying the inevitable. “Everybody knows the way it’s probably going to turn out.”
Upton said it’s possible that Republican Attorney Ken Paxton or other officials will continue to try to stand in the way of same-sex marriage. But he noted that once the Supreme Court rules, officials who refuse to comply with the ruling—from county clerks’ offices to the Bureau of Vital Statistics—can be sued personally.
A Texas House committee is set to hear another anti-gay marriage bill next week that would prohibit state or local funds from being used for “the licensing or support of a same-sex marriage.”
“They better be careful, because the stakes will be much higher once the Supreme Court rules if they rule in our favor, and playing games is just going to cost them attorney’s fees and damages,” Upton said.