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Texas ban on same-sex marriage challenged in federal court

On Wednesday, a federal judge will hear a challenge to Texas' ban on same-sex marriage.
Mark Phariss and Victor Holmes at home in Plano, Texas.
Mark Phariss and Victor Holmes at home in Plano, Texas.

Seventeen years after their first date, Victor Holmes and Mark Phariss feel optimistic they will soon be wearing the tuxes they have in mind for their wedding in the Lone Star State.

The couple is set to appear Wednesday in federal court for a hearing on their challenge of Texas’ same-sex marriage ban. And just as the "icepocalypse,” as Holmes described the storm threatening the south, seemed to be clearing up, the couple senses a thaw on the gay marriage front, too.

“We thought about getting married for a while, and even went down to have some rings made in 2008,” Phariss, a 54-year-old lawyer, told msnbc. “But it seemed the right time in light of Windsor to try and get married last October in Texas.”

Following the U.S. Supreme Court’s June decision to strike down a central provision of the Defense of Marriage Act (DOMA) in the landmark case of United States v. Windsor, dozens of gay couples have filed federal challenges to their states’ same-sex marriage bans, hoping to bring the issue once again before the nation’s highest court.

After being denied a marriage license last fall, Phariss and Holmes decided to join the movement and take on Texas' 2005 voter-approved amendment banning same-sex nuptials. The suit, filed in November on their behalf along with two more plaintiffs from Austin, marks the first attempt to topple a same-sex marriage ban in the deep South, and it highlights the expanding reach of the gay rights movement. Already, federal judges in Utah and Oklahoma, two of the reddest states in the nation, have declared bans on same-sex marriage unconstitutional.

“I was elated, beside myself,” said Phariss, an Oklahoma native, of the ruling in his home state.

He believes Texas is now ready for a similar change.

“I’m an Oklahoma football fan, and I personally think more Texans would have a problem with that than with my being gay,” Phariss added.

Holmes, a physician’s assistant and retired Air Force major, agreed.

“I remember very specifically when I went into the military what the public opinions were like--just hinting that someone was gay was taboo,” said Holmes, 44, who retired from the Air Force the same month that President Obama signed the repeal of "don't ask, don't tell," the military’s ban on openly gay servicemembers. “The word ‘gay’ doesn’t have the same connotations it used to,” he said.

While that may be true, polls tell something of a different story when it comes to views on same-sex marriage. According to a 2013 survey from the Equality Texas Foundation, more voters supported marriage equality than opposed it, by a very slim margin--47.9% to 47.5%. But a July survey from Public Policy Polling found only 34% of Texas voters in favor of same-sex marriage, with 57% opposed.

“Regardless of the vote,” said Phariss, “our constitutional rights should not be subject to votes of the majority.”

Their legal team, which is also representing two women from Austin, Texas, will argue that denying gay couples in the state the rights and benefits that go along with marriage violates the U.S. Constitution’s Equal Protection Clause of the Fourteenth Amendment. The state will defend the ban and ask the court on Wednesday to dismiss the suit.

Unlike a string of attorneys general who have declined to defend their state’s marriage laws, Texas Attorney General Greg Abbott -- the Republican front-runner in this year’s race for Texas governor -- argues in a brief filed with the court that current law does not discriminate against gays and lesbians. He, too, pointed to the Windsor decision in his defense of the ban.

“The U.S. Supreme Court was clear that states have independent authority to establish their marriage laws,” said Abbott’s office in a statement, as reported by Reuters. “Texans adopted a constitutional amendment defining marriage. We will defend that amendment.”

The current governor and 2012 Republican presidential candidate, Rick Perry, has also been a vocal opponent of same-sex marriage.

U.S. District Judge Orlando Garcia, a Clinton appointee, will hear the case. The other two plaintiffs are Cleopatra De Leon and Nicole Dimetman, who were legally married five years ago in Massachusetts, but want Texas to recognize their union. They are raising a son together.