AUSTIN – Attorney General Greg Abbott says Texas’ same-sex marriage ban should remain in place because legalizing it would do little or nothing to encourage heterosexual couples to get married and have children.

Writing in a brief filed to the Fifth Circuit Court of Appeals on Friday, Abbott said the state was not obligated to prove why gay marriage might be detrimental to the economic or social well-being of Texans. It was only required to show how opposite-sex marriage would be more beneficial for its citizens.

“The State is not required to show that recognizing same-sex marriage will undermine heterosexual marriage,” the brief read. “It is enough if one could rationally speculate that opposite-sex marriages will advance some state interest to a greater extent than same-sex marriages will.”

The new filing largely reiterated the same “responsible procreation” argument Abbott made in July, when the state first appealed a a February district court’s ruling overturning the Texas gay marriage ban. In it, Abbott argued marriage among heterosexual partners is more beneficial to society because it encourages married couples to have children and provides an example for other couples to do the same.

“First, Texas’s marriage laws are rationally related to the State’s interest in encouraging couples to produce new offspring, which are needed to ensure economic growth and the survival of the human race,” Abbott wrote.

He added, “Second, Texas’s marriage laws are rationally related to the State’s interest in reducing unplanned out-of-wedlock births. By channeling procreative heterosexual intercourse into marriage, Texas’s marriage laws reduce unplanned out-of-wedlock births and the costs that those births impose on society. Recognizing same-sex marriage does not advance this interest because same-sex unions do not result in pregnancy.”

In the brief, Abbott concedes that same-sex marriage might have some positive effects for society, like increasing household wealth and adoptions or providing a more stable environment for children raised by gay couples. While there might be benefits, however, he said it’s for the Legislature, not the courts, to decide whether to expand the right to marry.

Abbott, who is also the Republican nominee for governor, said parallels could not be drawn between the fight for same-sex marriage and previous cases that overturned bans on sodomy or affirmed the right for interracial couples to marry.

He denied that other courts’ decisions to overturn gay marriage bans represented salient precedent, saying these rulings simply represented the “purely subjective” beliefs of a few judges: “That is not a government of laws, but of men.”

San Antonio-based District Judge Orlando Garcia ruled the Texas ban unconstitutional in February because it violated same-sex couples’ 14th Amendment equal protection rights. The state appealed, pushing the case to the New Orleans-based Fifth Circuit Court of Appeals that hears cases for Louisiana, Mississippi and Texas.

Politicians, legal scholars, faith leaders and health care professionals have been eager to weigh in on the case.

Earlier this summer, 63 Republican lawmakers – including the frontrunners for lieutenant governor and attorney general, state Sens. Dan Patrick and Ken Paxton – signed a brief supporting the state’s ban. In it, they wrote allowing gay marriage could lead to Texas eventually legalizing pedophilia, polygamy and incest. A number of religious organizations and the attorneys general for 10 states with bans in place have also thrown their support behind Abbott.

Corporations and mental health organizations have argued against the ban, including 32 companies such as Amazon.com, Google, Starbucks and Target, as well as the American Psychological and American Psychiatric Associations. In September, 16 attorneys general from states with gay marriage already in place filed an amicus brief arguing their own experiences show only positive effects from allowing gays and lesbians to marry.

Last week, the court agreed to fast-track the Texas case. The request for expedited hearing came from Nicole Dimetman, a plaintiff in the case who is due to give birth to the second child with her wife, Cleopatra DeLeon, in March. The two were married in Massachusetts.

DeLeon bore the couple’s first child, now 2, and Dimetman quickly adopted the boy so she would have parental rights. The couple told the Express-News last week they hoped a victory in the courts would help them avoid another round of costly and stressful adoption requirements.

Victor Holmes and Mark Phariss, another gay couple living in Texas, are also appellees on the case.

Also this month, the court agreed to a request from Louisiana Attorney General Buddy Caldwell to have the same three-judge panel that hears the Texas case hear his argument in favor of that state’s gay marriage ban. The final briefs in the Louisiana case are due Nov. 7. Hearing dates will likely be set before the end of the year.

Same-sex marriage advocates have celebrated multiple victories lately. Recent decisions by the U.S. Supreme Court and federal judges have cleared the way for gay marriage in 29 states, with six more likely to follow suit soon. Proponents of gay marriage have netted one major loss, however, when a federal judge in Louisiana upheld that state’s ban earlier last month.

The Fifth and Sixth Circuit Courts are widely seen as two of the most conservative federal appeals courts in the country, and therefore the most likely to uphold a state ban on same-sex marriage. If either one breaks with precedent, becoming the first federal appeals court to uphold a ban, the issue will be kicked up to the Supreme Court for a final decision.

Lauren McGaughy is a reporter in the Houston Chronicle’s Austin bureau. She can be reached at lauren.mcgaughy@chron.com or on Twitter @lmcgaughy.

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