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Texas Supreme Court Takes a Look at Marriage Equality

Jessica Mason Pieklo

The legal battle over marriage equality in the state is getting mixed up in the 2014 midterm elections as conservatives urge the court to let Texas discriminate against same-sex couples.

There’s more fallout from the Supreme Court’s marriage equality decisions, including the possibility that the Texas Supreme Court may be the latest to uphold same-sex marriage rights.

The legal battle over marriage equality in Texas is playing out, interestingly enough, over the issue of divorce. State Rep. Dan Branch (R-Dallas) is asking the Texas Supreme Court to block same-sex couples legally married in other states from obtaining divorces in Texas. Attorneys for two same-sex couples seeking divorces in Texas argue that under the U.S. Supreme Court’s recent decision striking down part of the federal Defense of Marriage Act, Texas’ bans on same-sex marriage are also unconstitutional.

Branch, who’s running for attorney general in 2014, filed a friend-of-the-court brief last week calling for the Texas Supreme Court to overturn the Third Circuit appeals court’s decision upholding a divorce granted to lesbian couple Angelique Naylor and Sabina Daly in Austin in 2010. In his brief, Branch argues as much for his own political career as he does the sovereignty of Texas to discriminate:

Opponents of traditional marriage know that Texans believe strongly in the traditional institution of marriage — so Respondents cannot achieve their goals at the ballot box. They also know that they are wrong as a matter of constitutional law — so Respondents also cannot achieve their goals in this Court. Accordingly, the only way that Respondents can try to impose their vision upon the people of Texas is to trample upon both the legislative process by which Texas laws are supposed to be written, and the adversarial judicial process by which constitutional disputes are supposed to be resolved. Put simply, this lawsuit demonstrates that opponents of traditional marriage want to exclude the people of Texas from the legislative process — and then they want to exclude the legal representative of the people of Texas, the Attorney General of Texas, from the judicial process.

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The case is one of two same-sex divorce cases pending before the Texas Supreme Court, which requested a new round of briefs following the U.S. Supreme Court’s June marriage equality decisions. The Texas Supreme Court has not yet scheduled oral arguments in the two divorce cases.

As Branch’s brief and arguments make clear, the political battle over marriage equality is far from over, even as the legal battle winds down toward its inevitable conclusion. Social conservatives may believe they have the right to legislate away fundamental human rights, but thankfully the federal courts have so far ruled otherwise. Now it’s time for the state courts to do so as well.

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