Activist Judges’ defy Texas law to recognize same-sex marriage, TX Supreme Court issues stay

AUSTIN—The Texas Supreme Court issued a stay halting the issuance of marriage licenses to same-sex couples, Feb. 20, less than 24 hours after a Travis County Clerk issued a license to a lesbian couple in Austin.

As far as Texas Attorney General Ken Paxton is concerned, the marriage license issued to the couple Feb. 19 is null and void. However, although the court issued the stay, it did not immediately rule to void the license.

Theresa Farfan, deputy press secretary for the attorney general, told the TEXAN Travis County Clerk Dana DeBeauvoir issued the marriage license for Sarah Goodfriend and Suzanne Bryant of Austin in violation of Texas law and statutes. Those violations alone void the license, but Paxton asked the Texas Supreme Court for an expedited ruling on the case. Additionally he asked the high court to reaffirm the existing stay on the issuance of marriage licenses to same-sex couples and hold rogue judges to account.

Texas’ marriage law is presently under review by the U.S. Court of Appeals 5th Circuit.

In two unrelated cases last week, Travis County judges ruled in favor of lesbian appellants asking for relief from the Texas marriage restrictions. On Tuesday, Feb. 17, a probate judge declared the Texas marriage law unconstitutional. Two days later Judge David Wahlberg of the 167th District Court in Travis County delivered a similar ruling and issued a temporary restraining order on the enforcement of the law so Goodfriend and Bryant could marry.

Wahlberg ordered county clerk DeBeauvoir to ignore Texas’ “unconstitutional” law prohibiting same-sex marriage and to immediately issue the marriage license, waiving the requisite 72-hour waiting period. According to Austin news reports DeBeauvoir gladly accommodated the court order.

In his Feb. 19 order, Wahlberg wrote, “The Court finds that unless the Court immediately issues a Temporary Restraining Order, the unconstitutional denial of a marriage license to Plaintiffs will cause immediate and irreparable damage to Plaintiffs, based solely on their status as a same-sex couple.”

Paxton said both judges acted without authority in unilaterally declaring the Texas definition of marriage unconstitutional. Additionally, Texas statute requires judges contesting the constitutionality of a law notify the Attorney General’s office and allow for a response. The judges did neither.

Those violations rendered the marriage license void at its issuance despite the couple’s very public nuptial ceremony in front of the Travis County Clerk’s office located on a busy Austin thoroughfare. Paxton also reminded all state judges the Texas marriage law is still in force even as it is being challenged in appellate courts.

“The law of Texas has not changed, and will not change due to the whims of any individual judge or county clerk operating on their own capacity anywhere in Texas,” Paxton said in a Feb. 19 statement. “Activist judges don’t change Texas law, and we will continue to aggressively defend the laws of our state and will ensure that any licenses issued contrary to law are invalid.”

In his request to the Texas Supreme Court Paxton called the judges’ actions “an abuse of discretion” and called on the high court to “declare void any invalid marriage licenses issued in reliance on the trial court’s improper order.”