An assistant Texas solicitor general told a federal judge Wednesday that same-sex marriage is a "more recent innovation than Facebook." The comment was part of a legal argument defending the state's ban on same-sex marriage, which is currently being challenged by two same-sex couples in federal court.
"These questions are political questions, not constitutional rights," Assistant Texas Solicitor General Mike Murphy argued. "Same-sex marriage is not included in the fundamental right of marriage … it is a more recent innovation than Facebook."
Murphy told U.S. District Judge Orlando Garcia that if he chooses to lift the state's gay marriage ban, he will be embroiling himself in the current political debate waging in several other U.S. states. Murphy also argued that the issue of same-sex marriage should ultimately be left to the voters, and that traditional marriage is the ideal situation for which to raise children.
Garcia issued no ruling Wednesday in a request to place a preliminary injunction on the state's ban on same-sex marriage.
The federal judge told plaintiffs and defendants that he will weigh their arguments before making a decision on the case. Garcia was considering whether to grant a preliminary injunction requested by two same-sex couples who sued the state last October, challenging the constitutionality of its 2005 referendum – approved by 76 percent of voters – that defined marriage as being between one man and one woman.
Although Garcia gave no opinion on his possible ruling, he did tell the court that no matter what decision he makes on the injunction request, the case will most likely end up in the Supreme Court.
"As we all know, no matter how I decide this, this matter is going to be appealed," Garcia said Wednesday, adding that "ultimately a group of five people will decide this," referring to the Supreme Court justices. "I am not one of those five people."
Neel Lane, an attorney for the two couples fighting the ban, rejected the state's arguments that traditional marriage is a better environment for raising children, saying, "If marriage is good for children, then it is irrational to prohibit homosexual couples who could have children from being married."
Jonathan Saenz, of the pro-traditional marriage group Texas Values, told My San Antonio that ultimately he believes Texas residents have spoken on the issue of gay marriage when they voted in 2005.
"I'm hoping the judge will see … that this is a discussion that's left for the ballot box and for the people to decide," Saenz told the local media outlet. "When it comes to that matter, the Texas people have already been to the ballot box on this issue and it's settled … There is no reason that the federal government or the federal courts to jump in and impose their will on the state of Texas. That's clearly what the homosexual advocates want to happen here because they do not have the collective support of the people of Texas."
Currently, both Oklahoma and Utah are appealing a judge's previous ruling that lifted the bans on same-sex marriage in their states. Both states are having their cases heard in the Denver-based 10th Circuit Court of Appeals, and over 20 groups, professors and state attorneys have issued amicus briefs in the cases.
Also on Wednesday, U.S. District Judge John G. Heyburn II ruled that Kentucky must strike down part of its ban on gay marriage by recognizing same-sex marriages performed in other states.