Attorney General Greg Abbott's office is arguing that the U.S. Constitution allows Texas to ban same-sex marriage to promote the birth of children in "stable, lasting relationships."
Abbott's office filed a brief Monday with the 5th U.S. Circuit Court of Appeals. According to the 42-page document, Abbott maintains the state can ban same-sex marriage based on the state's interest in procreation, saying, “Texas' marriage laws are rooted in the basic reality of human life: Procreation requires a male and a female. Two people of the same sex cannot, by themselves, procreate."
U.S. District Court Judge Orlando Garcia declared the state law unconstitutional in February, but allowed Texas to keep enforcing its ban pending an appeal.
Abbott's office said Monday that the case wasn't about whether Texas should allow gay marriage, but "about the question of who decides." It said Texas voters approved the referendum by large margins and deserved to decide whether to keep it.
It also argued that Texas has an interest in promoting opposite-sex marriages and reducing "societal costs."
Cary Franklin is a professor of law at the University of Texas. She said Abbott’s argument hasn’t held up in similar cases around the country.
"What they've said is, ‘We don't require that people have children as a condition of marriage, so people who are infertile, people who are in their 80s, people who don't want to have children--all those people are allowed to get married,’" Franklin said. "Texas can't regulate marriage in a way that violates peoples’ fundamental rights and they can't regulate marriage in a way that violates equality, or equal protection."
The 5th Circuit Court of Appeals is known to be more conservative, but legal experts say courts in similarly conservative districts have been deeming same-sex marriage laws unconstitutional.
The Associated Press contributed to this report.