The battle over whether state-level bans on same-sex marriage violate the U.S. Constitution officially arrives in Texas this week.
A U.S. district judge in Austin will hold the first-ever hearing Thursday, Jan. 9 on federal lawsuits filed by same-sex couples challenging Texas’ marriage bans as unconstitutional. The three Texas lawsuits are part of a wave that have been filed across the country in the wake of the U.S. Supreme Court’s decision striking down part of the federal Defense of Marriage Act last June.
Judge Sam Sparks, of the Western District of Texas, will hold a status conference Thursday to consider pending motions in the lawsuits. Chief among those motions is a request from Republican Attorney General Greg Abbott, who’s defending the state’s marriage bans, to consolidate the three lawsuits into one. Plaintiffs in the cases oppose Abbott’s consolidation request, but an attorney for one acknowledged it’s likely to be granted.
“All three of the cases deal with the same basic constitutional issues,” said Dallas attorney Jason P. Steed, who represents two same-sex couples from Austin who filed their lawsuit in October. “Rather than deal with things in three separate cases, it’s pretty likely the court will want to hear it all in just one case. The question will be, which case does the court decide to consolidate it to?”
Steed serves as co-counsel for Shannon and Catherine Zarhn, and Alexis Augustine and Andrew Simpson, all of Travis County, who filed their lawsuit Oct. 31 in Austin — three days after two other same-sex couples filed a similar lawsuit in San Antonio.
Steed and his clients are seeking class-action status for all same-sex couples in Texas who want to marry or have marriages from other states recognized. He said class-action status is a cautionary measure to ensure favorable rulings apply to all couples, not just parties in lawsuits.
Steed said cases are typically consolidated under the one filed first — but in this instance the first lawsuit, filed in July, was from a Tarrant County couple who are representing themselves pro se — meaning they don’t have an attorney. Steed said he feels he and his co-counsel, Jody Scheske, are best qualified to handle the marriage lawsuits because they’ve dealt with similar issues in representing two same-sex couples in divorce cases that are pending before the Texas Supreme Court.
“If the cases are going to be consolidated, we would prefer they would be consolidated to our case,” Steed said. “We would all still be on the same side, and everyone would still be sort of involved in what’s going on. Ultimately, it probably doesn’t make a huge difference. It really would just come down to who’s calling the shots.”
Daniel McNeel Lane Jr., who represents two same-sex couples who filed their federal marriage lawsuit in San Antonio on Oct. 28, said he disagrees with the class-action strategy, because in the event of an unfavorable ruling, it would apply to all couples and prevent others from bringing their own cases.
Lane serves as co-counsel for Cleopatra DeLeon and Nicole Dimetman, of Austin, and Victor Holmes and Mark Phariss, of Plano. Lane said his firm, Akin Gump Strauss Hauer & Feld, has the most resources and is in the best position to litigate the federal marriage cases quickly.
They’ve already filed a motion seeking a preliminary injunction that would bar the state from enforcing the marriage bans pending trial. U.S. District Judge Orlando L. Garcia has set a hearing on that motion for February. Garcia is a Bill Clinton appointee, while Sparks is a George H. W. Bush appointee. Lane said he’d prefer to keep the case in San Antonio.
“We don’t lack confidence in Judge Sparks, but we certainly have a lot of confidence in Judge Garcia,” Lane said.
The third federal lawsuit seeking marriage equality in Texas was filed by Sven Stricker and Christopher Daniel McNosky.
Stricker, 25, of Bedford, and McNosky, 28, of Colleyville, requested a marriage license at the Tarrant County clerk’s office on July 1. After being denied, they filed their lawsuit on July 29 against Gov. Rick Perry, Attorney General Greg Abbott and Tarrant County Clerk Mary Louise Garcia.
In December, the couple filed a motion seeking summary judgment that draws heavily on U.S. District Judge Robert Shelby’s ruling that made same-sex marriage legal in Utah.
Stricker and McNosky are not attorneys, but they are representing themselves. They have declined offers from attorneys to represent them, saying they don’t want to give up control of the case.