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Texas challenges same-sex marriage license

Texas filing condemns the "rogue actions of Travis County judges" in same-sex marriage case

After declaring the first same-sex marriage in Texas "void," state Atty. Gen. Ken Paxton filed a request Friday with the state Supreme Court to have the union overturned.

Texans voted to ban same-sex marriage in 2005. But Thursday, an Austin couple -- Suzanne Bryant and Sarah Goodfriend -- received their marriage license after a state district judge ordered the Travis County clerk not to rely on "the unconstitutional Texas prohibitions against same-sex marriage as a basis for not issuing a marriage license."

Paxton immediately appealed to the state Supreme Court for a stay, which it issued hours later. But the couple, and the Travis County clerk, insisted their marriage license remained valid.

On Friday, after filing a request with the state's high court for a writ of mandamus instructing the lower court to vacate its ruling and make clear that all same-sex marriage licenses are void, Paxton released a statement condemning the "rogue actions of Travis County judges" insisting they "do not withstand the scrutiny of law" and could cast the state into "legal chaos."

"The same-sex marriage license issued yesterday is not valid because it conflicts with the Texas Constitution and state law -- the license is therefore void ab initio," the filing said, using a Latin legal term meaning "void from the start."

In the filing, Paxton’s office and the state solicitor general argued that the trial court "abused its discretion in multiple ways" -- notably, by not notifying the attorney general of the ruling so that he could immediately challenge it -- and that the state Supreme Court should intervene due to "the serious harm that could arise absent prompt relief."

"This ruling may cause same-sex couples to seek marriage licenses across the state, and county clerks may mistakenly rely on that order to begin granting such licenses," they argued, warning, "If that occurred, the harm to the couples, state officials, and the general public would be difficult if not impossible to undo."

The filing cited news coverage of ongoing legal wrangling over same-sex marriage in other states including Alabama, Utah and Michigan, where some local judges have married gay couples, while others have turned them away.

"The actions of the plaintiffs, as well as events in Utah, Michigan, and Alabama, demonstrate the gravity, reach and imminence of this harm absent mandamus relief," the filing says.

But Texas did not see a wave of same-sex marriage applications after a Travis County judge ruled against the state ban on same-sex marriages Tuesday. The Travis County clerk only agreed to issue a license after a second judge ordered her to do so Thursday, citing special medical circumstances: Goodfriend, 58, is battling ovarian cancer.

"We were hopeful that based on my medical condition that Suzanne, after being with me 30 years, would have an opportunity to clearly be the person who makes financial, medical, personal decisions of all kinds," said Goodfriend, an advisor to a state representative. "The fact that this is something Atty. Gen. Paxton wants to spend so much time and money on suggests to me that there’s a lack of compassion and tolerance.”

A Texas case challenging the state ban on same-sex marriage is pending before the U.S. Court of Appeals for the 5th Circuit in New Orleans, and the U.S. Supreme Court is expected to address the issue later this year.

Bryant, 63, a lawyer, called the state attorney general's actions "mean-spirited," and noted the state's ban on same-sex marriage is 10 years old.

"Anybody who looks at how our culture has gone on this issue in the last decade knows it has changed dramatically," she said. “I believe the U.S. Supreme Court will make that change, and I want Texas to be ready for it."

Twitter: @mollyhf

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