By PAUL J. WEBER
AUSTIN, Texas — When two same-sex Texas couples challenge the state’s gay marriage ban in a San Antonio federal court this week, they’ll carry the momentum of recent legal victories in conservative Utah and Oklahoma.
Whatever the outcome, the three Republicans running to become the next Texas attorney general will take notice.
Gay rights groups winning same-sex marriage cases nationwide almost guarantee that the issue will confront whoever replaces Attorney General Greg Abbott. His would-be GOP successors on Sunday blasted attempts to strike down the Texas law and vowed to defend a state ban going forward.
Railroad Commissioner Barry Smitherman said he “indeed” thinks the issue will loom large for the attorney general’s office, adding that he believed the U.S. Supreme Court overreached last year by ruling that married same-sex couples were entitled to federal benefits.
“All of the requirements of marriage have always been state issues, and they should remain state issues,” said Smitherman, who’s in a Republican primary race with state Rep. Dan Branch and Sen. Ken Paxton. The winner in March is likely to replace Abbott, the presumptive GOP nominee for governor, since Democratic candidate Sam Houston is a long shot.
Two same-sex Texas couples will be the latest to take on the state’s gay marriage ban on Wednesday, when they’ll ask U.S. District Judge Orlando Garcia to block parts of the law. One couple is two women wed in Massachusetts but whose marriage isn’t recognized in Texas; the other two men denied a marriage license in San Antonio last fall.
“There is no rational basis, much less a compelling government purpose, for Texas to deny (the couples) the same right to marry enjoyed by the majority of society,” attorneys for the couples wrote in their lawsuit filed in October.
Abbott’s office is asking the judge to dismiss the lawsuit.
Last month, a federal judge determined that Oklahoma’s voter-approved ban on gay marriage violated the U.S. Constitution’s equal protection clause. Another judge reversed Utah’s gay-marriage ban a month earlier. The U.S. Supreme Court halted weddings in Utah while a lower court considers the issue.
This weekend, U.S. Attorney General Eric Holder also announced that the Justice Department will recognize that same-sex spouses will have the legal rights of other married couples, such as not being compelled to testify against each other.
Branch, Paxton and Smitherman all spoke Sunday at a meeting of the Texas Association of Realtors, where they commended Abbott’s record of 30-plus lawsuits against the federal government. Only glancing references were made to the issue of gay marriage, as the candidates instead delivered promises to secure the Texas-Mexico border and take on federal environmental regulations.
A favorable ruling for the same-sex Texas couples this week would almost certainly trigger an immediate appeal, which would go to the 5th U.S. Circuit Court of Appeals in New Orleans.
“I’m optimistic the 5th Circuit will allow Texas to control its own destiny in this issue, which is what they should do. It should be a state issue,” said Paxton, of McKinney, who’s served in the Legislature for a decade.
Branch co-authored in the Texas House a 2005 state constitutional amendment that defined marriage as between one man and one woman. Last fall he filed a brief defending that law with the Texas Supreme Court in a separate case involving a same-sex couple who married in Massachusetts and then sought a divorce in Texas.
“I think it’s hard to predict where issues are going to move,” he said. “I think the courts have got the ball at this point. My concerns have been that when we think we’re going to fix one bias, we don’t create other biases.”