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Texas judge borrows heavily from Oklahoma, Utah judges in gay marriage decision

by Chris Casteel Published: February 26, 2014
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U.S. District Judge Orlando Garcia struck down Texas’ ban on same-sex marriage Wednesday with a decision that borrows heavily from the rationale and wording of similar decisions issued recently by federal judges in Oklahoma and Utah.

Garcia found the Texas constitutional amendment, approved by voters in 2005, and the laws implementing it deprived couples of their 14th Amendment rights to due process and equal treatment under the law. Judge Robert J. Shelby, in Utah, also found due process and equal treatment violations. Judge Terence Kern in Tulsa, found unequal treatment for same-sex couples but overturned Oklahoma’s law without the due process finding.

Garcia specifically cites the Utah and Oklahoma decisions in parts of his decision. However, in other sections, he seems to borrow his colleagues’ wording without attribution.

Here are some examples:

Shelby (Utah):

“The right to marry is an example of a fundamental right that is not mentioned explicitly in the text of the Constitution but is nevertheless protected by the guarantee of liberty under the Due Process Clause.”

Garcia:

“While the right to marry is not explicitly mentioned in the text of the Constitution, this right is nevertheless protected by the guarantee of liberty under the Due Process Clause.”

Kern (Oklahoma):

“Equal protection is at the very heart of our legal system and central to our consent to be governed.”

Garcia:

“Consequently, equal protection is at the heart of our legal system and is essential for the existence of a free society.”

Kern:

“Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently.”

Garcia:

“Supreme Court precedent prohibits states from passing legislation born out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).”

by Chris Casteel
Washington Bureau
Chris Casteel began working for The Oklahoman's Norman bureau in 1982 while a student at the University of Oklahoma. After covering the police beat, federal courts and the state Legislature in Oklahoma City, he moved to Washington in 1990, where...
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