Attorneys for two gay couples at the heart of De Leon v. Perry have asked the Fifth Circuit Court of Appeals to lift a stay that will allow same-sex marriages to start happening immediately.
A motion filed on Thursday asks the Fifth Circuit judges to lift a stay a federal district judge placed on his own 2014 decision that struck down the Lone Star State's gay marriage ban. If the Fifth should lift the stay same-sex marriages could start happening in the state right away. If, however, the Fifth declines to lift the stay, the attorneys have asked that Cleopatra DeLeon and her wife, Nicole Dimetman, is expecting their second child, be allowed to marry so that they can establish parental rights before the baby is born. "In the eyes of the State of Texas, Nicole is an unwed mother. That is a particularly noxious lie, and the record should be corrected," attorney Neel Lane told us via email.
The motion notes that the U.S. Supreme Court has refused to halt marriages in Florida and Alabama after federal district judges in both states struck down same-sex marriage bans. The Supreme Court will hear appeals on gay marriage bans that were upheld in four states in April. Many, including Justice Clarence Thomas, have speculated that the Supreme Court allowing Alabama marriages in particular to go forward is a signal that the Supremes -- or at least the main voting block that will ultimately make the decision on the issue -- have in fact already made up its collective mind. (And a lot of people are betting that the Justice Anthony Kennedy, resident swing vote, is almost definitely going to swing in favor of gay marriage considering he has a record of voting in favor of gay rights in recent years).
Anyway, that's what the attorneys representing De Leon, Dimetman and Mark Phariss and his partner Vic Holmes are arguing in the motion:
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"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."
The Fifth Circuit heard oral arguments on the case in January right before the Supremes finally agreed to take up the issue. Based on the line of questioning from the two of the three Fifth Circuit judges, as we've previously noted, the odds are decent that the Fifth may well back up District Judge Orlando Garcia's February 2014 ruling to strike down the state's gay marriage ban. The caveat being the Fifth may not rule at all with a decision from the Supremes right around the corner.
But if the Fifth chooses not to make that decision, De Leon and Dimetman are expecting their child any day, Lane pointed out. If the Fifth decides not to lift the stay in time for them to get married before the birth, the parental rights at the heart of their case will still be in limbo. There's no telling when or if the Fifth will make a decision on the motion to lift the stay or simply issue its decision on the case, Lane said.
Meanwhile, it's worth noting that same-sex marriage is now legal in all but 13 states -- even Alabama. Yes, Texas. Even Alabama is winning the more-progressive-than-we-are contest, albeit in a halting, grudging fashion. Alabama.