The U.S. Supreme Court Will Rule on Gay Marriage by June. Will Same-Sex Couples in Texas Have to Wait That Long?

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Today the U.S. Supreme Court announced that it will finally decide whether gay and lesbian couples can marry in all 50 states.

It's expected that sometime in April the High Court will hear oral arguments in a case that was kicked up from the U.S. Sixth Circuit Court of Appeals involving gay-marriage bans in Ohio, Tennessee, Kentucky and Michigan. In that case, the appeals court bucked the national trend, upholding those states' bans even as other courts one-by-one upheld the right for same-sex couples to marry.

The central question for Texas at this point is whether gay and lesbian couples here will have to wait that long.

Last week, when the federal Fifth Circuit appeals court heard oral arguments regarding gay marriage bans in Texas, Louisiana and Mississippi, things looked promising for advocates of marriage equality. The three-judge panel tore into state solicitor general Jonathan Mitchell, who, in arguing to uphold Texas' same-sex marriage ban, stooped to comparing marriage -- and the benefits and rights granted when a state legally recognizes it -- to a "subsidy" meant to encourage procreation and reduce out-of-wedlock births.

In a stunning display of disingenuous legal drivel, Mitchell told the judges:

"What we're saying is that marriage is a subsidy, and the State is entitled to reserve that subsidy for the relationships that are more likely to advance the State's interests in reducing unplanned out-of-wedlock births. And withholding that subsidy from marriages that will do nothing to advance the State's interest in reducing unplanned out-of-wedlock births.

... If the State Legislature decides, for example, that it will subsidize school lunches only for children of poor parents, and withhold those subsidies from children of middle class parents or wealthy parents, the State is not required to show that withholding that subsidy will advance the State's interest in nutrition. In fact, it would probably advance the State's interests in nutrition to subsidize school lunches for everyone, but the State is deciding to reserve the subsidy to the group of people who will most likely benefit from the subsidy, and for whom the State's interest in nutrition is more likely to be advanced, and advanced to a greater extent."

Got that? According to the state, Texas recognizes opposite-sex marriages while denying the right of gay and lesbian couples to marry for the same reason that it grants free and reduced school lunches only to poor and not rich kids.

Fifth Circuit judges James Graves Jr. and Patrick Higginbotham quickly made Swiss cheese of Mitchell's argument. (Higginbotham: "I'm trying to follow your analogy, because the lunch analogy sounds like I'm not denying you the right to eat lunch, I'm just telling you I'm not going to pay for it." Graves: "I'm not following what you're saying. Are you saying that if you allow same sex marriage that the Legislature is justified in concluding that that will increase the number of children born out of wedlock?")

San Antonio Attorney Neel Lane, who argued before the Fifth Circuit last week and who's representing two Texas couples fighting for the right to marry, told us via email, "It is preposterous to characterize marriage as a 'subsidy' by the state, but those are the kinds of preposterous positions the state has had to take to defend an unjust law that is clearly unconstitutional."

Both Lane and the State of Texas had already asked the Fifth Circuit to rule, regardless of whether or not the Supreme Court decided to hear a gay-marriage case - "It is the only thing we agree with the state on," Lane says. If the Fifth Circuit does come down with a ruling in favor of gay marriage, it's unclear whether Texas' new attorney general, Ken Paxton, would try to further delay things by appealing the case to the Fifth Circuit's full 15-judge panel.

Nevertheless, Lane believes that the Fifth Circuit judges' questions last Friday indicate their willingness to lift the current stay that's kept Texas' gay-marriage ban in place. If the Fifth decides not to punt, there's the very real possibility that Texas could see gay marriages before the Supreme Court takes up the issue.

"The question is whether the Fifth Circuit will rule on the three cases before it, knowing that the Supreme Court is likely to give a definitive answer by June," Lane told us. "I hope the Fifth Circuit will rule rather than wait, because my clients have waited long enough for their rights to be recognized."

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