SAN ANTONIO, TX (TIP): Two same-sex couples, including one from Plano, asked a federal judge Wednesday, February 12 to stay Texas’ constitutional ban on gay marriage so one can wed and the other can have their outof- state marriage recognized. U.S. District Judge Orlando Garcia didn’t immediately rule on plaintiffs’ request for a preliminary injunction.

The case is one of three to challenge the Texas ban – and the furthest along. Nationally, similar battles are underway in federal courts in 23 states. Garcia, an appointee of former President Bill Clinton, acknowledged that his ruling will be far from the final say on the matter. “Any one of those cases,” he said, ticking off lawsuits in Oklahoma, Utah, Ohio and Virginia, “or a combination thereof will make its way to the Supreme Court,” he said.

In June, the justices ruled, 5-4, that married same-sex couples are entitled to federal benefits. Quoting U.S. District Judge Sam Sparks of Austin, Garcia said: “Ultimately, a group of five people will decide this case, and I’m not one of those five.” Lawyer Mark Phariss and physician’s assistant Victor Holmes of Plano, who’ve been domestic partners for more than 16 years, brought the suit, along with Austin residents Cleopatra De Leon and Nicole Dimetman. De Leon and Dimetman got married in Massachusetts in 2009. They have a young son.

Their lawyers, Barry Chasnoff and Neel Lane, argued it’s only a matter of time before the Supreme Court strikes down gaymarriage bans in Texas and 32 other states. Chasnoff said the states have violated the 14th Amendment to the U.S. Constitution by denying a privilege – the ability to marry – for reasons mostly of hostility or “animus” toward gay men and lesbians. Pointing to his wife of 43 years in the audience, Chasnoff said marriage confers many financial and emotional blessings.

“What we want is for Vic and Mark, Nicole and Cleo to have the same opportunity in their life that I’ve been fortunate to have,” he said. “It should not be denied in law because of sexual orientation.” Assistant Texas Solicitor General Mike Murphy said that concern for children, and a belief they’re best brought up by a heterosexual couple, underlie the Texas constitutional amendment defining marriage as between a man and a woman. Calling the ballot measure an act of prejudice or ill will against gays and lesbians is “an unsupported claim,” he said.

“The purpose of Texas marriage law is not to discriminate against same-sex couples but to promote responsible procreation,” Murphy said. Plaintiffs’ lawyers Chasnoff and Lane, though, were quick to point out that infertile and elderly heterosexuals marry all the time, with no interest in having children. Also, the two lawyers noted, many same-sex couples bring up youngsters, through adoption and assisted reproduction. “If marriage is good for children, then it’s irrational to prohibit same-sex couples who could have children from being married,” Lane said.

The U.S. Constitution requires states to give “full faith and credit” to other states’ laws and judicial edicts. Murphy, who works for Attorney General Greg Abbott, the leading Republican candidate for governor, said the Texas ban doesn’t trample on other states’ decisions. “An out-of-state marriage is not terminated when they move to Texas,” he said of gay and lesbian couples. “It’s simply not recognized.” Federal courts haven’t enshrined same-sex marriage as a fundamental right of U.S. citizens, Murphy said. Massachusetts was the first state to legalize same-sex marriage, in 2004, he noted.

“It is a more recent innovation than Facebook,” he said. Murphy said the plaintiffs want to yank the hot-button social issue from the Legislature and voters and hand it to federal judges. “This court should not do that,” he said. The argument irritated Phariss, the plaintiff who’s also a lawyer. He told reporters after the hearing that U.S. voters ratified the 14th Amendment, which provides for states to give equal protection of the laws to all citizens, in 1868.

“The U.S. Constitution trumps anything that Texas does,” he said. “What stings is that they use a local action here to try to suggest that that would somehow or another trump our constitutional rights.” U.S. District Judge Orlando Garcia is expected to decide whether to temporarily block the law, approved by voters in 2005, until a trial can be held in the couples’ case. Similar lawsuits have been filed in 22 other states, but the Texas lawsuit is the first of its kind in the region covered by the southern and deeply conservative 5th U.S. Circuit Court of Appeals, where the case will likely end up.