AUSTIN, Texas — Lawyers for two same-sex couples challenging Texas’ same-sex marriage ban are refuting state claims the prohibition promotes raising children in “stable, lasting relationships,” arguing in an appeals brief Tuesday that it serves no legitimate state interest.
The 88-page filing with the 5th U.S. Circuit Court of Appeals says the ban denies gay couples’ children the “protection and stability” afforded if their parents were allowed to marry. It answers a July brief by Texas Attorney General Greg Abbott’s office, which claimed the ban was constitutionally protecting since it promoted child rearing by couples whose relationships were strong and stable, and thus more likely to endure.
Texas voters overwhelmingly approved a 2005 state constitutional amendment banning gay marriage. In February, U.S. District Judge Orlando Garcia declared it unconstitutional but allowed the ban to remain in effect pending appeal.
Abbott, the front-runner to be elected Texas governor in November, argued in his earlier brief that Texas voters have the right under the U.S. Constitution’s equal protection clause, the same amendment often cited by ban opponents, to define marriage in a way that best supports children.
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Mark Pharriss, a longtime friend of Abbott’s, is among those suing to overturn the ban, along with his partner. Their brief argued that it hurts children of gay parents.
“Far from encouraging a stable environment for child rearing,” the ban “denies children of same-sex parents the protections and stability they would enjoy if their parents could marry,” it said.
The brief also called Texas’ past assertions that the ban encouraged responsible procreation “illogical” as part of a larger argument that there’s “no logical relationship” between the ban and a “legitimate state interest.”
“Even accepting procreation as a legitimate state interest, it defies logic and the undisputed evidence to claim that preventing lesbians and gay men from marrying will encourage heterosexual marriage or, conversely, that allowing lesbians and gay men to marry will discourage heterosexual marriage,” the brief states.
Attorneys for those challenging the ban say they are hoping both sides will be allowed to present oral arguments before the New Orleans-based appeals court – but that a date for those has yet to be set.
Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year, though most are under appeal. Lawsuits challenging such bans have been filed in all 31 states that prohibited same-sex marriage, while 19 states and the District of Columbia allow such marriages.
The plaintiffs’ brief is here.
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