Judge: Texas gay marriage ban will remain in place for now

Minda Tovar, left, and her son, Gavyn Rodriguez along with other supporters of same sex marriage gather in front of the Bexar County Courthouse to celebrate a preliminary injunction granted by U.S. Federal Judge Orlando Garcia declaring the ban unconstitutional earlier in the day on Wednesday, Feb. 26, 2014. Two gay couples, Cleopatra De Leon, Nicole Dimetman, Mark Phariss and Vic Holmes filed the federal suit in hopes of overturning the ban. less Minda Tovar, left, and her son, Gavyn Rodriguez along with other supporters of same sex marriage gather in front of the Bexar County Courthouse to celebrate a preliminary injunction granted by U.S. Federal ... more Photo: JERRY LARA, San Antonio Express-News Photo: JERRY LARA, San Antonio Express-News Image 1 of / 1 Caption Close Judge: Texas gay marriage ban will remain in place for now 1 / 1 Back to Gallery

A San Antonio-based federal judge declined on Friday to allow gay marriages to take place in Texas while the state awaits a ruling from the 5th Circuit Court of Appeals.

In February, U.S. District Judge Orlando Garcia ruled Texas’ same-sex marriage ban unconstitutional, but — knowing his ruling would be appealed — imposed a hold that prevented gays from immediately getting married. The state did appeal, and the U.S. 5th Circuit Court of Appeals in New Orleans has scheduled oral arguments for Jan. 9.

In early October, the U.S. Supreme Court declined to review same-sex marriage cases from five other states, effectively legalizing gay marriage in Utah, Oklahoma, Virginia, Indiana and Wisconsin. Since then, federal courts in five additional states have overturned their bans, bringing the total number of states with legalized same-sex marriage to 35. It also is legal in Washington, D.C., and St. Louis.

Noting the legal landscape has changed, the two couples who challenged Texas’ ban, Nicole Dimetman and Cleopatra De Leon and Mark Phariss and Victor Holmes, requested last month that Garcia lift the stay.

Garcia seemed to anticipate that the 5th Circuit would put the stay back in place in the Texas case if he lifted it. If lifted, he wrote, it would create a rush to courthouses of same-sex couples seeking to get married, only to see themselves in legal limbo should the stay be reimposed by the appeals court.

“Lifting the stay would not bring finality to this Fourteenth Amendment claim,” Garcia wrote. “To the contrary, such action would only be temporary, with confusion and doubt to follow. The day for finality and legal certainty in the long and difficult journey for equality is closer than ever before.”

He reiterated what he said in court in February — that he believes the issue will ultimately be resolved by the Supreme Court.

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Twitter: @gmaninfedland