Texas' ban on same-sex marriage allows the state to promote the birth and upbringing of children in "stable, lasting relationships," the state's attorney general argued Tuesday while asking a federal appeals court to reinstate the ban.
Attorney General Greg Abbott, the Republican nominee for governor, said the views of ban opponents could be considered "rational." But he argued 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.
"There are good, well-meaning people on both sides," he wrote to the 5th U.S. Circuit Court of Appeals, echoing previous sentiments in the case. But he argued that opposite-sex couples are better suited to have and raise children, and thus help reduce "societal costs."
"Because same-sex relationships do not naturally produce children, recognizing same-sex marriage does not further these goals to the same extent that recognizing opposite-sex marriage does," the brief said.
Mark Pharriss, a longtime friend of Abbott's who along with his partner sued the state over the ban, argued that the real harm to children is done when their parents aren't granted "the benefits and protections of a marriage."
"Our constitutional rights are not up for the vote of Texas citizens," he said. "That point has been made unanimously by every district court and now two circuit courts who have looked at this issue."
A federal judge declared Texas' ban unconstitutional in February but allowed it to remain in effect during the appeal process.
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.
Abbott is the front-runner to replace Texas Gov. Rick Perry, also an opponent of gay marriage. His Democratic opponent, state Sen. Wendy Davis, has applauded the ruling invalidating the gay marriage ban.
In its motion filed Tuesday, Abbott's office said its argument — that opposite-sex couples provide the best environment for newborn children — doesn't violate the U.S. Constitution because it treats all couples the same. The office also argued that voters, not courts and attorneys, know what's best for their state.
"Issues are often more complex than judges and lawyers think, and their legal training gives them no comparative advantage in resolving the complex value judgments and empirical questions that go into deciding questions such as whether same-sex marriage should be legal," the brief said.
The brief was filed a day after an appeals court in Virginia upheld another lower court's ruling striking down the state's gay-marriage ban.
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