Updated Aug. 6, 11 p.m.:
Removing Texas' same-sex marriage ban could clear the way for bigamy, pedophilia and incest, according to a federal brief signed by 63 Texas Republican lawmakers including the GOP candidates for Texas lieutenant governor and attorney general.
The amicus brief, filed by the Texas Conservative Coalition, which includes among its members state Sen. Dan Patrick, the GOP nominee for lieutenant governor, and state Sen. Ken Paxton, the Republican nominee for attorney general, argues that if same-sex marriage is made legal in Texas, it could lead to the legalization of bigamy and incest. The brief, which was filed on Monday, was first reported by Lone Star Q, an LGBT news site, and the full list of lawmakers who signed on can be viewed here.
"If the right to select ‘partners of their choosing’ is the criterion used to invoke marriage as a fundamental right," the brief states, "then marriage restrictions on age, polygamy and consanguinity are also ripe for challenge.”
In a statement, state Rep. Celia Israel, D-Austin, a lesbian, said her colleagues in the Legislature "should be embarrassed."
"This kind of bigotry belongs to the Mad Men era, not in our Texas," she said. "We should be working to welcome more people to our state, not spreading this kind of hateful rhetoric."
Eleven state senators and 52 state representatives signed onto the "friend of the court," or "amicus," brief, which was filed with the 5th U.S. Circuit Court of Appeals in New Orleans, the same court where Texas Attorney General Greg Abbott’s office is appealing a federal district court judge’s February ruling that the same-sex ban is unconstitutional.
In its brief, the Texas Conservative Coalition, a legislative caucus, states that recognition of pedophilia and other "morally reprehensible actions" might not be the immediate "next step" if same sex marriage was allowed in Texas. But the Republicans claim the state's marriage laws were enacted to support "valid goals related to those concerns."
Texas Democratic Party Chairman Gilberto Hinojosa said Texans deserve leaders "who know that love is love, and that it's time to end the Republican culture of discrimination across our state."
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 federal 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.
Federal 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.
Correction: A previous version of this article mistakenly described Orlando Garcia as a state district judge. He is a federal district judge.