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AG Files Brief Supporting Same-Sex Marriage Ban

Marjorie Kamys Cotera, Texas Tribune
Texas Attorney General and Republican gubernatorial candidate Greg Abbott speaks to supporters at Lavazza Espression on Congress Avenue in Austin.

Attorney General Greg Abbott’s office filed a brief on Monday arguing that Texas’ ban on same-sex marriage is constitutionally sound and a matter for voters, not courts, to decide. 

The brief was filed with the 5th U.S. Circuit Court of Appeals, where the state is appealing a state district court judge’s February ruling that the ban is unconstitutional. The case pits two same-sex couples against Gov. Rick Perry, state Health Commissioner David Lakey and Abbott, who is also the Republican nominee for governor.

State district court Judge Orlando Garcia ruled against a 2005 state constitution amendment banning same-sex marriage and against similar state laws passed in 1997 and 2003.

“Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution,” he wrote in February.

Abbott’s office contends that a same-sex marriage ban meets the Equal Protection Clause’s prescription that laws “be rationally related to a legitimate state interest.” The state argues that promoting opposite-sex marriage encourages the birth of children “in the context of stable, lasting relationships” in a way that same-sex marriage could not.

More fundamentally, the brief says, the courts should not overrule Texas voters' decision in 2005 to define marriage in the state constitution as “solely the union of one man and one woman.”

Regardless of the court’s legal authority to strike down same-sex marriage bans, the attorney general argues, democracy would be better served by allowing voters to decide.

The brief also argues that the state doesn't need to prove that same-sex marriage is detrimental to the state interests, but simply that opposite-sex marriage is more beneficial. The state says a ban on same-sex marriage does not contradict the U.S. Constitution, U.S. Supreme Court rulings or the country’s history and traditions.

The Texas case is one of several challenges to state same-sex marriage bans that have cropped up across the nation since the Supreme Court struck down part of the Defense of Marriage Act last spring. Many of the challenges have moved quickly through the judicial system, and it is expected that the Supreme Court could take up one or more of the cases in its upcoming term, potentially issuing a ruling on same-sex marriage bans as early as next spring.

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