The Austin Chronicle

The Human Right of Marriage

Nicole Dimetman and Cleopatra De Leon take marriage equality to the 5th Circuit

By Mary Tuma, November 7, 2014, News

After more than 40 hours in labor, doctors told Cleopatra De Leon she would need an emergency C-section. Aside from the obvious anxiety of the medical complication, partner Nicole Dimetman felt the added panic that she might not be able to protect her child if De Leon died while giving birth. While the couple, who wed in 2009 at a small ceremony in Boston, are legally married, the state of Texas refuses to recognize their marriage, or grant them the same parental protections as heterosexual couples.

"If Cleo had not survived, I would have had no rights to direct my son's care as a newborn in the hospital," said Dimetman, from their Southwest Austin home. "He would be orphaned after birth. It was a terrifying thought, realizing how vulnerable our family is."

The hospital experience compelled the couple to fight the 2005 Texas constitutional amendment effectively banning same-sex marriage. "When we were asked to be part of this case, we couldn't help but think about that moment at the hospital – it was so upsetting; it made us so afraid, there was no saying 'no' to being involved," said Dimet­man. The Austin residents, along with Plano-based Victor Holmes and Mark Phariss (who hope to get married in Texas) have sued the state in De Leon v. Perry – successfully thus far – to ensure marriage equality is the law of the land.

Last February, in a historic step for gay rights, U.S. District Judge Orlando Garcia ruled the state statute unconstitutional, under the 14th Amendment right to due process and equal protection. He said the denial of marriage equality "demean[s] [homosexual couples'] dignity for no legitimate reason." However, the preliminary injunction did not take immediate effect, as Garcia issued a stay pending appeal to the U.S. 5th Circuit Court of Appeals. Attor­ney General (and now governor-elect) Greg Abbott formally appealed the ruling in July, arguing, in clinical terms, that the constitutional amendment reflects the state's interest in promoting procreation between a man and a woman. Since then, LGBT advocates and plaintiffs have waited for word on a hearing date before the 5th Circuit Court of Appeals.

Time is pressing for the plaintiffs, who filed the suit a year ago. Dimetman is pregnant with the couple's second child and hopes to establish De Leon's parental rights before childbirth, forgoing the insecurity and fear of delivery as well as the lengthy and costly adoption process. On Oct. 6, the couple requested the 5th Circuit expedite the hearing. "The newborn child should not be exposed to the same uncertainty as his or her older sibling," the motion to advance reads. It also notes that the risk their unborn child faces is unfortunately "common" among same-sex parents and their children – nearly 19,000 children live in Texas households headed by a same-sex couple, with 58% of them born biologically by either parent.

The 5th Circuit agreed to fast-track the case, tentatively setting oral arguments for both Texas and a similar case out of Louis­iana for Jan. 5. But the plaintiffs are disappointed with the time frame – announced just last week – as it creates an additional hurdle. Roughly 20 weeks pregnant and due March 15, Dimetman will soon be restricted from traveling (or at least be dependent on permission from a physician). The plaintiffs had asked the New Orleans-based court to take up their case in Nov­em­ber, before Dimetman's third trimester. "It's not exactly what I would call expedited," said Neel Lane, an attorney representing the two couples. "It's a little frustrating, but we are eager to make our case."

"There is an urgency for everyone who is waiting for marriage equality and who needs it in Texas," Lane continued. "But particularly here because Nicole is pregnant, and may not be able to travel to the argument. And now it is even more unlikely that the opinion will be released before her child is born – which is what we hoped to avoid. So there are reasons to be impatient with the pace of this appeal."

Phariss and Holmes also expressed dismay: "Vic and I are extremely disappointed in the 5th Circuit's scheduling order," said Phariss via email. "It unnecessarily delays the time when Vic and I, and the hundreds of thousands of other gay and lesbian couples in Texas, can marry. But love will ultimately prevail and we look forward to that day."

In the short term, that depends upon whether the notoriously conservative 5th Circuit decides in their favor. To date, every circuit court has overturned same-sex marriage bans – if the 5th Circuit deviates from precedent, the likelihood increases of the Texas case reaching the U.S. Supreme Court. If they uphold the ban, Lane said he will appeal directly to the high court for review. (Onlookers are also keeping their eyes on the Ohio-based and also-conservative 6th Circuit Court of Appeals, which is expected to rule on marriage equality soon.)

"There is now a real and significant chance that the Texas case could be the case that goes to the Supreme Court," said Cary Franklin, assistant professor at the UT-Austin School of Law. Franklin, who specializes in anti-discrimination law in the areas of sexual orientation, said the Texas suit could become a landmark decision, mirroring the impact of the 2003 Lawrence v. Texas case – which struck down sodomy laws in more than a dozen other states.

In a victory for LGBT advocates, earlier this month the high court refused to take action on same-sex marriage cases in five states, effectively legalizing marriage equality in a total of 32. Franklin said it's unclear how the 5th Circuit may act in the Texas case, or how it might interpret the Supreme Court's inaction – on one hand, the Supremes' denial could be viewed as inconclusive; on the other, their failure to intervene translates into quiet validation. "It'll be very interesting to see what the 5th Circuit does," said Franklin.

Dimetman and De Leon, who returned to Austin in 2012 after a previous stint here while Dimetman attended law school, said they are eager for the day they will no longer have to tote adoption papers to prove they are parents. "It's about having your home state afford you the same respect and deference as any other couple. When the default laws of your state don't protect you and your family, it's a horrible feeling."

The couple, actively involved in the local LGBT community and busy raising their 2-year-old toddler, say they have little space to ponder the prospect of their case reaching the U.S. Supreme Court. "We don't have much time to think about that, but if it does happen, it will be surreal," said Dimetman. "And we will definitely need a babysitter."

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