Same-sex marriage will arrive in Texas before Easter, according to an attorney for two couples who are challenging the state’s marriage bans in federal court.
Daniel McNeel Lane Jr., of Akin Gump Strauss Hauer & Feld in San Antonio, made the prediction as he prepared for oral arguments in the case at the 5th U.S. Circuit Court of Appeals in New Orleans on Friday.
U.S. District Judge Orlando L. Garcia struck down Texas’ marriage bans as unconstitutional last February, but stayed his decision pending an appeal from Attorney General Greg Abbott.
Last week, the 5th Circuit Court unveiled the three-judge panel that will hear the Texas appeal—along with marriage cases from Louisiana and Mississippi—on Jan. 9. Although the 5th Circuit is among the most conservative federal appeals courts in the country, Lane said he’s confident the panel will rule in favor of marriage equality within a few months and that the decision will take effect immediately.
“I don’t think it will be stayed, certainly not by the Supreme Court, I don’t think it will be reviewed by the Supreme Court, and I think we’ll have marriage equality by Easter,” Lane told the Observer on Friday. “That’s my prediction. … That’s my strong feeling.”
On the same day as oral arguments at the 5th Circuit, the U.S. Supreme Court will meet to decide whether to hear same-sex marriage cases from four other states, which could pave the way for a nationwide ruling in favor of marriage equality as early as June. As of Tuesday, when same-sex marriage takes effect in Florida, Texas will be one of only 14 states where it’s still prohibited.
“Whatever the Supreme Court does, we will still make our arguments, the 5th Circuit is likely still to rule, and let the chips fall where they may. I’m sure that’s what our panel’s view will be,” Lane said. “The two will not be connected, and this court knows that if it affirms Judge Garcia, and finds that residents of this state have a right to marry the person they love, regardless of gender … it’s likely that that freedom, that equality, that justice, will come very swiftly, and the tide of that equality will never be turned back.”
Kenneth D. Upton Jr., senior counsel for the LGBT civil rights group Lambda Legal, which is handling the Louisiana marriage case, said marriage equality in the 5th Circuit before Easter is “certainly one possibility.” But Upton added, “There are a couple of things that could throw a wrench in that prediction.”
Upton said if the 5th Circuit panel rules in favor of marriage equality, it’s possible the state of Texas would appeal the decision to the 15-member court en banc—which would be “a more hostile setting.”
“I don’t think the panel would stay it, but if the 5th Circuit grants rehearing before the entire court, the panel decision is automatically vacated,” Upton said. “So, I suspect Abbott’s office would play that card since they have nothing to lose.”
Upton said the 5th Circuit panel could also simply decide to wait for the high court.
“If they [Supreme Court justices] grant any petitions, and because they aren’t staying cases anymore, I think any subsequent court of appeals case will be held to see what the ultimate answer is,” he said.
Lambda Legal has asked the high court to review the Louisiana case even though the 5th Circuit hasn’t decided it yet—a type of request that’s rarely granted but that will also be considered Friday. Upton said whether the Supreme Court agrees to hear the Louisiana case, one of the other four cases or some combination, he thinks Friday’s proceedings in New Orleans will be upstaged by what happens in Washington.
“The arguments in the 5th [Circuit] will not be the real story that day,” he said. “It will be [the Supreme Court]. I feel pretty sure they will grant something that day.”
Although there’s “an outside chance” the high court court will agree to hear one of the cases but hold it over until its next term, Upton said he believes the real question before the 5th Circuit panel is whether same-sex marriage arrives in Texas, Louisiana and Mississippi in June—or sometime before then.
However, that’s not an insignificant question for people like Cleopatra DeLeon and Nicole Dimetman of Austin, one of the two plaintiff couples in the Texas case.
DeLeon and Dimetman were inspired to join the lawsuit after DeLeon experienced complications giving birth to their first child. That’s when the couple realized that if something had happened to DeLeon, due to Texas’ marriage bans, Dimetman couldn’t have made medical decisions for the baby.
Now, Dimetman is pregnant with the couple’s second child—and due in 10 weeks. Despite potential risks involving air travel in the third trimester of pregnancy, DeLeon and Dimetman plan to be at Friday’s hearing pending a doctor’s final approval this week.
“We didn’t want to be doing this, but it’s very important,” Dimetman said. “The reason it’s important for us to go is the same reason it’s important for us to be in this fight. We’re doing this for our family and for families like ours all over the state.
“I’m due in March, but every day babies are born to same-sex couples,” Dimetman added. “Every day that we are not granted our rights is a big deal.”
To further illustrate the point, Lane said he had a gay acquaintance in Florida who passed away during the holidays and had a partner of 20 years.
“Had he lived until today, he could be married, and that’s the difference of a week,” Lane said. “We know that we have hundreds of thousand of citizens who are subject to these unjust laws in Texas, and we know that a number of them will die every week before they have justice and before we have equality, and we need to right a terrible wrong, and we need to do it now.”