Texas AG: Legal chaos if same-sex marriage not deemed void

Austin, Texas (AP) — Republican Texas Attorney General Ken Paxton said Friday the state's gay marriage ban has been "needlessly cast in doubt" after a judge gave a lesbian Austin couple permission to tie the knot.

Paxton asked the Supreme Court of Texas to declare the marriage license issued to Suzanne Bryant and Sarah Goodfriend invalid. Paxton warned of "legal chaos" if the court doesn't make clear that a judge wrongly allowed the couple to wed.

"A clear statement is necessary so that all judges within Texas understand that this Court or the U.S. Supreme Court will decide the constitutionality of Texas law," Paxton wrote.

Attorneys for the couple contend the marriage remains valid and said Paxton would need to sue the clerk who issued the license, as well as Bryant and Goodfriend, if he wanted the nuptials voided.

"If he's in the business of suing loving couples who've been together 30 years, one of whom has cancer, than I think it's a sad day for Texas," attorney Brian Thompson said.

State District Judge David Wahlberg, an elected Democrat, on Thursday ordered the Travis County Clerk to issue the couple a license. He based his order on a probate court judge's ruling on Tuesday that the state's ban on same-sex marriage is unconstitutional. Paxton said Wahlberg relied on an order that violated state law — because he wasn't notified first of the constitutional challenge.

Travis County Clerk Dana DeBeauvoir, whose office issued the license, said that Paxton's allegations "are not accurate." She added, "That's not the way that it happened."

Wahlberg declined to comment.

Former Supreme Court of Texas justice Craig Enoch said the statute that requires notifying the Attorney General when something has been deemed unconstitutional was crafted to avoid these types of situations. The statute also requires courts to wait 45 days before making a final ruling on a law's constitutionality.

"Somebody was supposed to notify the Attorney General," said Enoch, a Republican who served on the court from 1993 to 2003 and is now in private practice. "At a minimum, it would seem to me that the clerk was not in a position to issue the license."

The marriage license given to the Austin women — who succeeded by seizing on a ruling this week in an unrelated estate squabble — thrust the nation's second most populous state back into the national spotlight over gay marriage but didn't send same-sex couples rushing to Texas courthouses.

The number of states in which gay and lesbian couples can marry has nearly doubled to 37 since October after the U.S. Supreme allowed lower court rulings to stand and rejected state efforts to keep same sex marriage bans in place.

The Texas Supreme Court acted quickly Thursday after an emergency appeal by Paxton to block other potential gay marriages, making the nuptials somewhat bittersweet for Bryant and Goodfriend.

"We just feel like we were in the right place at the right time, to maybe put a nice crack in that door that's going to open up for all Texans," Bryant said.

Goodfriend, 58, has ovarian cancer. Wahlberg raised the "severity and uncertainty" of her condition in granting the women permission to marry, sending the couple scrambling through a Travis County clerk building in case state Republican leaders got wind and intervened.

Courts in Indiana made a similar exception for a lesbian couple in April because one of the women was dying of cancer and wanted her partner's name on her death certificate. A federal appeals court overturned Indiana's ban in September.

A federal judge in San Antonio last year overturned Texas' same-sex marriage ban but put his ruling on hold while the state appeals to the 5th U.S. Circuit Court of Appeals.

By Eva Ruth Moravec and Paul J. Weber, Associated Press. Copyright 2015 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

The Gayly – February 21, 2015 @ 9:45am.