Texas AG: Same-Sex Couples' Request to Marry 'Untimely, Out of Order'

Texas's Republican attorney general has responded to a petition filed by two same-sex couples asking the state to let them legally marry immediately — and he isn't pleased, reports the Houston Chronicle.

Greg Abbott, the current Texas attorney general who was elected governor this month, filed a scathing response Tuesday to a U.S. district court petition filed earlier this week by the gay and lesbian couples who successfully sued the state challenging its ban on same-sex marriage.

Back in February, U.S. District Judge Orlando Garcia issued a ruling striking down Texas's antigay constitutional amendment, but placed his ruling on hold as the case was appealed and as similar cases from other states worked their way through the federal court system. Citing the avalanche of pro-equality rulings around the country since Garcia's February decision, plaintiffs Monday asked the judge to lift the stay placed on his order and let same-sex couples wed immediately in the Lone Star State.

Calling that request "unfounded," Abbott, writing for the state, says the plaintiffs' request should be denied outright, claiming it is "untimely, coming nine months after the Court's unopposed stay [in Judge Garcia's initial decision]."

"The motion is also out of order, since the Court stayed the entire case pending appeal and the plaintiffs have not sought to reopen the case," Abbott's brief continues.

The state also claims that the same-sex couples are deliberately seeking to interfere with the "status quo" of "longstanding Texas marriage law" in advance of a hearing in the case scheduled for January 9 before the Fifth Circuit Court of Appeals. Noting that the plaintiffs' request comes nine months after Garcia's initial decision, two months after all briefs were due at the Fifth Circuit, and one month before that Fifth Circuit hearing is scheduled to take place, Abbott argues that the court should deny the couples' request to lift its stay.

"This last-minute request is even more surprising given that (1) the plaintiffs voiced no opposition to a stay when the Court directly asked them at the preliminary injunction hearing, (2) they did not challenge the stay in the Fifth Circuit, and (3) they did not oppose a stay of the entire case while the appeal is pending," writes Abbott. "What's more, the sole basis for the plaintiffs' motion (denial of certiorari in other same-sex marriage cases) occurred almost two months ago. … The plaintiffs offer no explanation for why they waited so long to file their motion. They should not be rewarded for lying behind the log and springing this challenge on the Court and the State at the eleventh hour, demanding immediate relief."

In their brief asking for the stay to be lifted, attorneys for the same-sex couples who sued the state noted that several appeals courts have ruled in favor of marriage equality, and the U.S. Supreme Court let those rulings stand in October. The plaintiffs' brief also highlights the Supreme Court's denial of several requests for stays on pro-marriage rulings in other states, most recently in Idaho, Nevada, and Alaska.

But Abbott's brief contends that "the plaintiffs misread the Supreme Court tea leaves." The Supreme Court has only denied such requests to put rulings on hold in cases out of districts where all lower courts found in favor of equality, Abbott explains. "The plaintiffs cite no case (and we are aware of none) in which the Supreme Court has declined to stay a district court's injunction of a State's marriage law in a circuit that has not yet resolved the issue."

Finally, Abbott rejects the claims of impending harm by the continued denial of the freedom to marry, made by one of the same-sex couples in their request to lift the stay. Cleopatra De Leon and her wife, Nicole Dimetman-De Leon, are expecting their second child in the coming months, and told the court they want their marriage recognized in Texas before the child's birth so that De Leon can be recognized as the legal second parent of their child. If Dimetman-De Leon were to fall ill or die in childbirth, under current Texas law her wife would have no legal right to be by her side, make end-of-life decisions, nor have any legal connection to the child her wife birthed.

"These alleged harms are speculative;" Abbott writes in his brief urging the court to dismiss the request. "They are contingent on death or incapacity of one of the parties, but the plaintiffs do not allege any threat or expectation that these potential tragedies will befall them."