Texas attorney general Greg Abbott
Texas attorney general Greg Abbott (Diego M. Radzinschi / NLJ)

Same-sex marriage appeals continue to advance in the federal appellate courts, with Texas filing a defense of its ban with the U.S. Court of Appeals for the Fifth Circuit.

Texas Attorney General Gregg Abbott acted late Monday, even as his counterparts in North Carolina and West Virginia re-evaluated whether to continue to defend their states’ bans in light of neighboring Virginia’s defeat on that same day in the Fourth Circuit.

Texas Solicitor General Jonathan Mitchell urged the appellate court to reverse a February district court ruling invalidating the state constitutional amendment prohibiting the creation or recognition of same-sex marriages. He urged the court to resolve the issue even if the U.S. Supreme Court grants review this fall in Utah’s appeal of a Tenth Circuit decision in Kitchen v. Herbert.

In DeLeon v. Perry, Mitchell argued that the decision about same-sex marriages belongs to voters and their elected legislatures, not the federal courts. The district court, he argued, weighed the constitutionality of Texas’ amendment under an incorrect application of so-called rational-basis review by requiring the state to produce evidence that its law would achieve its objectives.

“It is enough if one could rationally believe that opposite-sex marriages will advance the state’s interests in procreation to a greater extent than same-sex marriages,” he wrote. “Indeed, it is enough if one could rationally speculate that opposite-sex relationships might be more likely than same-sex relationships to produce children.”

The state also argued that same-sex marriage is not a “fundamental right” because it is not deeply rooted in the nation’s history and tradition—criteria required by Supreme Court precedents. Additionally, he argued, Texas’ marriage laws do not conflict with recent Supreme Court decisions involving the federal Defense of Marriage Act and interracial marriages.

“The plaintiffs would like this court to extend the holdings of those cases,” Mitchell wrote. “But a court cannot extend those cases absent a showing that Texas’ marriage laws conflict with the Constitution, and the plaintiffs have not presented an argument based on the Constitution.”

The Fourth Circuit on July 28 struck down Virginia’s same-sex-marriage bans in a 2-1 ruling in Bostic v. Schaefer. Elsewhere within the Fourth Circuit, North Carolina Attorney General Roy Cooper, announcing he would no longer enforce that state’s ban, said, “Simply put, it’s time to stop making arguments we will lose and instead move forward knowing the ultimately resolution will likely come from the U.S. Supreme Court.”

In contrast, South Carolina Attorney General Alan Wilson said he would enforce and defend his state’s ban. West Virginia Attorney General Patrick Morrisey said his office is reviewing the Fourth Circuit decision.

The Sixth Circuit on Aug. 6 will hear arguments in five appeals in the fight over same-sex marriages.

Contact Marcia Coyle at mcoyle@alm.com.