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Texas’ Gay Marriage Ban Struck Down by Judge

SAN ANTONIO (CN) - Texas' ban on same-sex marriage is unconstitutional, a federal judge ruled, unleashing a wave of criticism from elected officials in the traditionally conservative state.

U.S. District Judge Orlando Garcia granted a preliminary injunction Wednesday in favor of a Plano, Texas, gay couple wishing to marry and an Austin lesbian couple who married in Massachusetts and seeks to have their union recognized in Texas.

They sued Gov. Rick Perry, Attorney General and Republican gubernatorial candidate Greg Abbott, the Bexar County Clerk and the state health commissioner in October 2013.

The couples claimed that their constitutional rights to due process and equal protection were violated by a 2003 law against same-sex unions and a 2005 voter-approved constitutional amendment defining marriage between a man and a woman.

In a 48-page opinion, Garcia agreed with the gay couples, citing the U.S. Supreme Court's 2013 ruling that struck down a portion of the federal Defense of Marriage Act.

"After careful consideration, and applying the law as it must, this court holds that Texas' prohibition on same-sex marriage conflicts with the United States Constitution's guarantees of equal protection and due process," Garcia wrote. "Texas' current marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason."

Garcia concluded that the state did not provide any evidence for its claim that banning same-sex marriages has a positive effect on raising children.

"This court agrees with other district courts that have recently reviewed this issue and concluded that there is no rational connection between defendants' assertion and the legitimate interest of successful childrearing," Garcia wrote. "To the contrary, this court finds that far from encouraging a stable environment for childrearing, Section 32 [of the Texas Constitution] denies children of same-sex parents the protections and stability they would enjoy if their parents could marry. Furthermore, defendants' proferred reason fails rational basis because defendants have failed to establish how recognizing a same-sex marriage can influence, if at all, whether heterosexual couples will marry, or how other individuals will raise their families."

The judge was not persuaded by the state's argument that same-sex spouses cannot naturally procreate, pointing out that the argument assumes heterosexual marriages are "naturally procreative."

"Procreation is not and has never been a qualification for marriage," Garcia wrote. "This procreation rationale threatens the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating. These individuals who cannot or will not procreate are allowed to marry under Texas' current laws."

Garcia also disagreed with the state's argument that an injunction would be against the public interest, because it would change the legal definition of marriage and rewrite more than 150 years of law.

"This court finds that keeping tradition and history intact is not a justification for the infringement of an individual's rights," Garcia said.

Immediately after Wednesday's ruling, the attorney general said his office would appeal to the 5th Circuit in New Orleans, citing the U.S. Supreme Court's precedent of giving states the authority to define and regulate marriage.

"The Texas Constitution defines marriage as between one man and one woman," Abbott said in a statement. "If the 5th Circuit honors those precedents, then today's decision should be overturned and the Texas Constitution will be upheld."

Gov. Perry said it was not the federal government's role to overturn "the will of our citizens."

"The 10th Amendment guarantees Texas voters the freedom to make these decisions, and this is yet another attempt to achieve via the courts what couldn't be achieved at the ballot box," Perry said in a statement. "We will continue to fight for the rights of Texans to self-determine the laws of our state."

While ruling for the gay couples, Garcia stayed the execution of his order pending the state's appeal to the 5th Circuit and possibly the U.S. Supreme Court, alongside several other federal trial judge rulings that invalidated similar bans in other states.

In January, U.S. District Judge Terence Kern in Tulsa struck down a similar state constitutional amendment that banned same-sex marriage in neighboring Oklahoma. The ban is "so attenuated" from the state's moral and child-bearing justifications that it "cannot survive rational-basis review," he said.

"Equal protection is at the very heart of our legal system and central to our consent to be governed," Kern wrote. "It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights."

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