Updated: Perry and Abbott file notice of appeal in same-sex marriage case

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Photo Credit: Chelsea Purgahn | Daily Texan Staff

Updated (Thursday 4:12 p.m.): One day after U.S. District Judge Orlando Garcia ruled Texas' ban on same-sex marriage unconstitutional, the state of Texas filed a notice of appeal in federal court contesting Orlando's ruling.

Texas attorney general Greg Abbott, the presumptive Republican candidate for governor, and current governor Rick Perry were both named as defendants in the appeal, as well as David Lakey, commissioner of the Texas Department of State Health Services. 

In a statement released Wednesday, Abbott announced his intentions to appeal the ruling and said the case would ultimately go to a higher court.

"Texas will begin [the process] by appealing today's ruling to the Fifth Circuit," Abbott said in the statement. "The ultimate decision about Texas law will be made by the Court of Appeals or the U.S. Supreme Court."

Abbott said ultimately, he believes defining marriage is up to individual states to decide.

"The Supreme Court has ruled over and over that States have the authority to define and regulate marriage," Abbott said. "The Texas constitution defines marriage as between one man and one woman. If the Fifth Circuit honors those precedents, then today's decision should be overturned and the Texas Constitution will be upheld." 

Original story (Wednesday 2:32 p.m.): On Wednesday, San Antonio-based U.S. District Judge Orlando Garcia ruled a ban on same-sex marriage unconstitutional, though the ruling will not take effect until it can be reviewed on appeal.

Garcia, who sits on the U.S. District Court for the Western District of Texas, said his decision is consistent with the U.S. Supreme Court ruling in June that held the federal government must allow married same-sex couples to receive federal benefits.

“After careful consideration, and applying the law as it must, this Court holds that Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantee of equal protection and due process,” Garcia said. “Texas’ current marriage laws deny homosexual couples the right to marry, and, in doing so, demean their dignity for no legitimate reason.”

The case was put forth by Cleopatra De Leon and Nicole Dimetman, two lesbian women from Austin who sought recognition for an out-of-state marriage license, and Mark Phariss and Victor Holmes, two gay men from Plano who want to get married in Texas. De Leon got her master’s degree from UT-San Antonio, while Dimetman is an alumna of the UT School of Law.

Garcia now joins five other federal judges who have ruled same-sex marriage bans unconstitutional in Virginia, Oklahoma, Utah, California and Kentucky.

Earlier this month, U.S. District Judge John Heyburn ruled that Kentucky’s state ban on gay marriage violated gay and lesbian citizens’ guarantee for equal protection under the law.

“Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them,” Heyburn wrote in his opinion.

In Virginia, Justice Arenda Wright Allen also overturned the state’s ban on same-sex marriage. Like Garcia, Allen stayed the execution of her ruling pending review in an appeals court.

In June, in a 5-4, the Supreme Court overturned a part of the Defense of Marriage Act and ruled the federal government could not deny recognition to same-sex couples whose marriages are legally recognized by the state.

According Greg Abbott, Texas attorney general and favorite to be the Republican nominee for governor, the process to appeal Garcia’s decision will begin in the Fifth Circuit.

“Because the judge has stayed his own decision, his ruling has no immediate practical effect,” Abbott said in a statement. “Instead, the ultimate decision about Texas law will be made by the Court of Appeals or the U.S. Supreme Court.”

Abbott said the U.S. Supreme Court’s precedent gives states the authority to regulate marriage.

“The Texas Constitution defines marriage as between one man and one woman,” Abbott said. “If the Fifth Circuit honors those precedents, then today’s decision should be overturned and the Texas Constitution will be upheld.”