It may be a small step, but Texas is one step closer today to overturning the 2005 Constitutional Amendment that outlaws gay marriage, 1200 WOAI news reports.


  U.S. District Judge Orlando Garcia in San Antonio has set a February date to hear oral arguments on a lawsuit filed by two gay couples challenging the ban.


  Neal Lane, the lawyer for the couples, says Judge Garcia could have simply examined the written documents and determined that the case has no merit and should be summarily dismissed.


  “What we may believe from this development is that the judge looked at the papers, and believes that there is a reason why the hearing should go forward,” Lane said.


  One of the couples was legally married in Massachusetts, and then sued when they were denied the right to adopt a child in Texas jointly because Texas doesn’t recognize their marriage.  The other couple is a pair of retired Air Force officers who sued after attempting to get a marriage permit and were turned away.


  “The judge has just set a hearing,” Lane said.  “We have no reason to know which way he will rule, but he has reviewed the papers and has determined there is enough reason that a hearing should be set.”


  Fifteen states now legalize gay marriage, but the U.S. Supreme Court’s ruling in the Windsor case this past summer is expected to open the door to widespread legalization of gay marriage, when the justices overthrew the Clinton era federal Defense of Marriage Act and ruled that the federal government must recognize gay unions.


  The 2005 Constitutional Amendment was approved with 76% of the vote in Texas, but opponents say the issue has evolved since then.  Polls today show Texans supporting gay marriage.


  “The plaintiffs are asking the federal court to enjoin the State of Texas from enforcing restrictions agaisnt same sex marriage, which deprive them of the same rights as everyone else in the state of Texas to marriage,” Lane said.


  Lane expects the case to go to the U.S. Supreme Court.


  This case and other cases which have resulted in gay marriage being legalized in states relies on the Equal Protection Clause of the Fourteenth Amendment.  Since marriage confers rights, like the right of adoption, the right of survivorship, and the right of a surviving spouse to inherit property tax free, the argument is that prohibiting gays from marrying unconstitutionally prohibits them from enjoying these rights.