July 24, 2014 10:25 AM

Texas same sex marriage battle looms at federal appeals court

A "prohibition of disparate treatment is what the federal judges are relying upon when they’re hearing these cases on state (gay marriage) bans.”

Just as a federal judge struck down the same-sex marriage ban in Colorado, it’s worth noting that the Texas test case on the same subject is headed to the Fifth Circuit Court of Appeals on Monday with the state’s first set of briefs.

The Colorado ruling is stayed, pending a review by the 10^th US Circuit Court of Appeals. If that appeal fails, Colorado would become the 27^th consecutive state in the process of striking down same-sex marriage bans based upon the last year’s ruling in United States v Windsor. That ruling, as you may be aware, did not legalize same-sex marriage, but it declared a portion of the Defense of Marriage Act an unconstitutional deprivation of equal protection under the Fifth Amendment.

“The Windsor case was not specifically about marriage, but the guts of that decision is that the equal protection clause does apply to gay people,” said Chuck Smith of Equality Texas. “That prohibition of disparate treatment is what the federal judges are relying upon when they’re hearing these cases on state bans.”

And, of course, Texas will get its own turn with De Leon v Perry, in which plaintiffs asked for an injunction in the state’s gay marriage ban in 2013. Two couples are involved: A lesbian couple married in Massachusetts but denied the right to jointly adopt in Austin and two gay men who were denied a marriage license in Texas.

By Kimberly Reeves