Paxton Asks Court to Void Marriage License of Gay Couple

^{*Editor's note: This story has been updated throughout.}

Texas Attorney General Ken Paxton on Friday asked the state Supreme Court to void a marriage license issued to two Austin women who became the first same-sex couple to legally wed in the state.

Sarah Goodfriend and Suzanne Bryant, who have been together for 30 years, said their vows on Thursday after state District Judge David Wahlberg ordered the Travis County clerk to issue them a marriage license. Later that day, the Texas Supreme Court put a temporary hold on Wahlberg’s order. Paxton is now asking the court to overturn the order and declare the couple’s marriage license void.

Despite Texas’ constitutional ban on marriages between same-sex couples, Wahlberg ordered the license be issued to Goodfriend and Bryant under special circumstances because Goodfriend was diagnosed with ovarian cancer last year.

Although Wahlberg’s court order was specific to the Austin couple, Paxton asked the court on Friday to to overturn the order to “avoid the legal chaos” that could arise if county clerks “mistakenly rely” on the order and begin granting marriage licenses to other same-sex couples.

“If that occurred, the harm to the couples, state officials, and the general public would be difficult if not impossible to undo,” Paxton wrote in a petition filed with the Supreme Court.

Since Thursday’s wedding, state attorneys have been at odds with the county clerk and attorneys for the couple on whether the license was ever valid.

Paxton argued on Thursday the couple’s marriage license is void "just as any license issued in violation of state law would be." Citing the fact that Texas' gay marriage ban remains in place, Paxton is now asking the Supreme Court to declare the couple's marriage license invalid because it was the result of an "improper order." 

Chuck Herring, the couple's attorney, contends that the Supreme Court's involvement in the case has no effect on the marriage, which he says is legal. On Friday, Herring said Paxton’s actions were “procedurally improper” and may lack substance to hold up before the Supreme Court.

“He’s out of touch with history, he’s out of touch with constitutional law as declared by the United States Supreme Court, and it remains cold-hearted, mean-spirited, and just a terrible thing for him to try to do to a woman who has ovarian cancer,” Herring said.

Travis County Clerk Dana DeBeauvoir has said she has every reason to believe the license her office issued is still valid.

In his petition, Paxton also asked the Texas Supreme Court to make clear that lower courts cannot rule that Texas' gay marriage ban is unconstitutional while the issue is being considered in higher courts.

The constitutionality of the state’s gay marriage ban is currently being considered at the federal level. After a January hearing, a three-judge panel of the U.S. 5th Circuit Court of Appeals is expected to rule on Texas’ gay marriage ban in the coming months. The U.S. Supreme Court is expected to have the final word on the issue. It has agreed to hear four gay marriage cases from other states later this year.

Alexandra Albright, a law professor at the University of Texas at Austin, said she was unsure whether the attorney general has the standing to invalidate a marriage license.

"As far as bringing a lawsuit to invalidate, it sounds like a stretch," Albright said. Because the U.S. Supreme Court is considering the issue, she added it's unlikely the Texas high court will quickly rule on Paxton's petition.

"I don’t think they see any reason to hurry up and try to issue an opinion before the U.S. Supreme Court decides," Albright said.

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