Texas Attorney General Greg Abbott is hoping the 5th U.S. Circuit Court of Appeals will buck a trend of 29 consecutive state and federal rulings in favor of same-sex marriage.
Abbott’s office filed its initial brief Monday appealing U.S. District Judge Orlando Garcia’s February decision, which found that Texas’ marriage bans violate the U.S. Constitution’s guarantee of equal protection under the law.
Abbott’s appeal was filed on the same day that the 4th U.S. Circuit Court struck down Virginia’s ban as unconstitutional, becoming the third federal appeals court to rule in favor of marriage equality. In its 42-page brief filed Monday, Abbott’s office argues that the issue should be settled by voters and state legislatures, not the courts.
“This case is not about whether Texas should recognize same-sex marriage. It is about the question of who decides,” the brief states. “There are rational, thoughtful arguments on both sides of the political debate about whether to legalize same-sex marriage. That debate should be allowed to continue among voters and within democratically elected legislatures. Under the United States Constitution, the decision belongs to the people of Texas and their elected representatives, not the federal courts.”
Abbott’s office also argues that there is a rational basis for Texas’ marriage bans because they promote procreation and stable family relationships.
“Texas’s marriage laws are rooted in a basic reality of human life: procreation requires a male and a female. Two people of the same sex cannot, by themselves, procreate,” the brief states. “The State’s recognition and encouragement of opposite-sex marriages increases the likelihood that naturally procreative couples will produce children, and that they will do so in the context of stable, lasting relationships.”
Abbott’s office is appealing Judge Garcia’s decision in DeLeon v. Perry, a case brought by two same-sex couples — one seeking a Texas marriage license and the other seeking to have their out-of-state marriage recognized. Following oral arguments in San Antonio, Garcia ruled in favor of the couples but stayed his decision pending Abbott’s appeal.
Same-sex marriage is now legal in 19 states and the District of Columbia. On Monday, the 4th Circuit Court joined 28 others that have ruled in favor of marriage equality since the U.S. Supreme Court struck down a portion of the federal Defense of Marriage Act in June 2013.
Those rulings include decisions from the 10th U.S. Circuit Court of Appeals striking down marriage bans in Oklahoma and Utah. The Utah attorney general is appealing the 10th Circuit’s decision to the U.S. Supreme Court. However, Abbott’s office argues in its brief that even if the high court decides to hear the Utah case, the 5th Circuit should issue its own decision.
Although the other cases are ahead of DeLeon v. Perry in the federal appellate process, some experts believe the Texas case may be the one the Supreme Court ultimately takes. That’s because a ruling against marriage equality from the conservative 5th Circuit would create a split among federal appeals courts that could compel the high court to settle the issue.
Also Monday, Abbott’s office rejected the delivery of 5,200 petitions calling for him to stop defending Texas’ bans on same-sex marriage.
Abbott, a Republican, is running for governor against Democratic state Sen. Wendy Davis in November. Davis supports marriage equality and has called on Abbott to stop defending the bans.
Attorneys for the same-sex couples are scheduled to file their response to Abbott’s appeal in September. The 5th Circuit has not scheduled oral arguments.
Read the full brief from Abbott’s office below.