Editor's note: This story has been updated.
The Texas Supreme Court on Friday tossed out Attorney General Ken Paxton’s effort to undo the union of the first gay couple to legally wed in Texas. The court-ordered same-sex marriage of two Austin women had occurred months before such unions were legalized by the U.S. Supreme Court.
In light of the U.S. Supreme Court’s landmark June ruling that same-sex marriage is protected by the U.S. Constitution, the state’s highest civil court dismissed Paxton’s request as moot.
The case dates back to February 2015 when Austin residents Sarah Goodfriend and Suzanne Bryant were legally wed after obtaining a marriage license from the Travis County clerk under direction from state District Judge David Wahlberg.
At the time, Texas’ constitutional ban on marriage was still in effect. But Wahlberg ordered Travis County Clerk Dana DeBeauvoir to issue the license under special circumstances because Goodfriend was diagnosed with ovarian cancer a year earlier. Wahlberg ordered the county to “cease and desist relying on the unconstitutional Texas prohibitions against same-sex marriage.”
Although Wahlberg’s court order was specific to the Austin couple, Paxton challenged the marriage before the Texas Supreme Court, which later blocked Wahlberg’s ruling to prevent other same sex couples from obtaining marriage licenses. A day after the couple wed, Paxton asked the court to overturn the order and void the marriage license to “avoid the legal chaos” that could arise.
Despite dismissing Paxton’s challenge Friday, three Republican justices on the court also used their concurring opinion to lambast the attorney who represented the couple and suggest Wahlberg abused his discretion in invalidating the state’s same-sex marriage ban without giving the state the opportunity to fight the order.
“This was an invalid invalidation,” wrote Justice Don Willett in his concurrence of the case. “No matter the cause du jour, no matter the perceived exigencies, Texas law forbids the striking down of Texas law without first respecting the attorney general’s statutory opportunity — and constitutional duty — to defend it.”
Justice Jeffrey Brown described the ordeal as a “deliberate and premeditated misuse of the Texas justice system,” pointing to comments made by Chuck Herring, the couple’s attorney, about the state’s inability to invalidate the license.
“These comments paired with the conduct he exhibited in this litigation make this fact obvious: the lawyer for the real parties in interest intentionally and illegitimately gamed the system — and the trial court helped him do it,” Brown wrote.
Herring on Friday defended his strategy, saying it was legally sound and claiming that the conservative justices’ opinions were “philosophically based,” out of touch with history “and now out of touch with the law of the land."
“The court reached the right result, and that’s what’s important,” Herring said.