Texas Attorney General Makes A Particularly Silly Argument Against Same-Sex Marriage

Texas Attorney General Greg Abbott has made an incredibly weak argument in favor of his state's ban on same-sex marriage.

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Texas Attorney General Greg Abbott, who is running for Governor and expected to win easily in November, has filed a brief with the Fifth Circuit Court of Appeals arguing that the state’s ban on same-sex marriage is constitutional because it advances the state’s goal of reducing out-of-wedlock births:

AUSTIN – Attorney General Greg Abbott says Texas’ same-sex marriage ban should remain in place because legalizing it would do little or nothing to encourage heterosexual couples to get married and have children.

Writing in a brief filed to the Fifth Circuit Court of Appeals on Friday, Abbott said the state was not obligated to prove why gay marriage might be detrimental to the economic or social well-being of Texans. It was only required to show how opposite-sex marriage would be more beneficial for its citizens.

“The State is not required to show that recognizing same-sex marriage will undermine heterosexual marriage,” the brief read. “It is enough if one could rationally speculate that opposite-sex marriages will advance some state interest to a greater extent than same-sex marriages will.”

The new filing largely reiterated the same “responsible procreation” argument Abbott made in July, when the state first appealed a a February district court’s ruling overturning the Texas gay marriage ban. In it, Abbott argued marriage among heterosexual partners is more beneficial to society because it encourages married couples to have children and provides an example for other couples to do the same.

“First, Texas’s marriage laws are rationally related to the State’s interest in encouraging couples to produce new offspring, which are needed to ensure economic growth and the survival of the human race,” Abbott wrote.

He added, “Second, Texas’s marriage laws are rationally related to the State’s interest in reducing unplanned out-of-wedlock births. By channeling procreative heterosexual intercourse into marriage, Texas’s marriage laws reduce unplanned out-of-wedlock births and the costs that those births impose on society. Recognizing same-sex marriage does not advance this interest because same-sex unions do not result in pregnancy.”

In the brief, Abbott concedes that same-sex marriage might have some positive effects for society, like increasing household wealth and adoptions or providing a more stable environment for children raised by gay couples. While there might be benefits, however, he said it’s for the Legislature, not the courts, to decide whether to expand the right to marry.

Abbott, who is also the Republican nominee for governor, said parallels could not be drawn between the fight for same-sex marriage and previous cases that overturned bans on sodomy or affirmed the right for interracial couples to marry.

He denied that other courts’ decisions to overturn gay marriage bans represented salient precedent, saying these rulings simply represented the “purely subjective” beliefs of a few judges: ”That is not a government of laws, but of men.”

San Antonio-based District Judge Orlando Garcia ruled the Texas ban unconstitutional in Februarybecause it violated same-sex couples’ 14th Amendment equal protection rights. The state appealed, pushing the case to the New Orleans-based Fifth Circuit Court of Appeals that hears cases for Louisiana, Mississippi and Texas.

Politicians, legal scholars, faith leaders and health care professionals have been eager to weigh in on the case.

Earlier this summer, 63 Republican lawmakers – including the frontrunners for lieutenant governor and attorney general, state Sens. Dan Patrick and Ken Paxton – signed a brief supporting the state’s ban. In it, they wrote allowing gay marriage could lead to Texas eventually legalizing pedophilia, polygamy and incest. A number of religious organizations and the attorneys general for 10 states with bans in place have also thrown their support behind Abbott.

Corporations and mental health organizations have argued against the ban, including 32 companies such as Amazon.com, Google, Starbucks and Target, as well as the American Psychological and American Psychiatric Associations. In September, 16 attorneys general from states with gay marriage already in placefiled an amicus brief arguing their own experiences show only positive effects from allowing gays and lesbians to marry.

Last week, the court agreed to fast-track the Texas case. The request for expedited hearing came from Nicole Dimetman, a plaintiff in the case who is due to give birth to the second child with her wife, Cleopatra DeLeon, in March. The two were married in Massachusetts.

So, yes, the Attorney General of Texas is essentially arguing that the ban on same-sex marriage is justified because it encourages people to get married rather than have children out of wedlock. On some level, you could actually see the logic in his argument, but the problem is that there’s just no connection between the goal of limiting out of wedlock pregnancy and the ban on allowing gays and lesbians to enjoy the legal benefits of marriage. In the abstract, one can see an argument in favor of marriage laws in general that says that the state should recognize marriage and grant it certain special legal rights not available to others because of the fact that it would tend to discourage pregnancy outside of marriage, which numerous statistics show leads to serious social and economic problems for both the mother and any children she may be raising on her own. It doesn’t follow from that, however, that marriage should be limited only to men and women. If one were to take Abbott’s argument to its logical extreme, actually, then the state would be within its authority to refuse to recognize marriages between people who are not of child-bearing age, marriages between people who are physically incapable of having children, and marriages between people who choose not to have children and take affirmative steps (i.e., vasectomy or tubal ligation) to make sure it doesn’t happen. In fact, one could even seen Abbott’s argument being used to argue that the state should have the power to strip its recognition of a marriage once the couples involved have passed child bearing age and all of the children born of the marriage have reached the age of majority.

All of these would be absurd things for the state to do, of course, but they are no more absurd than the argument that achieving the goal of reducing out of wedlock births is a justification for banning same-sex marriage. For one thing, the goal that Abbott focuses on is not the only one that marriage helps to advance. Recognizing and even encouraging marriage also helps promote family stability, it tends to lead to higher incomes, and it increases the ties that people have to the greater community around them. All of these are goals that can be achieved by granting marriage rights to same-sex couples as much as it can be achieved by limiting it to opposite sex couples. Moreover, as Abbott appears to concede and the Supreme Court’s majority in United States v. Windsor recognizes, gays and lesbians are generally permitted to adopt anywhere in the country and allowing marriage is good for the children involved in these adoptions. In other words, there is absolutely no contradiction between Abbott’s stated goal of preventing out of wedlock births and recognizing same-sex marriage, and there is no evidence that doing so would somehow increase out of wedlock births.

On a side note, it’s worth noting that Texas’s ban on same-sex marriage does not appear to be achieving the goal Abbott has set for it given the fact that, to pick just one category, Texas has some of the highest rates of unmarried teen pregnancy in the country:

Teen Pregnancy Map

Additionally, a Census Bureau report from 2013 [PDF] shows that Texas’s rate of unwed births generally is roughly equivalent to the national average, while many states that recognize same-sex marriage have lower than average rates of out of wedlock births.  So, arguably, that ban on same-sex marriage doesn’t seem to be doing much to help Texas achieve that goal of theirs.

Abbott isn’t the first Attorney General or advocate of laws banning same-sex marriage to make an argument like this, of course, It is in fact an argument that has been made by advocates of such laws since the litigation on this issue first started and, by and large, it has been consistently rejected by all but a handful of the Judges who have heard it. Part of the problem that people in his position face, of course, is that the legal arguments in support of the bans have been so thoroughly eviscerated in court after court in recent years that its hard to come up with anything that sounds any more credible. This is one of the reasons why, from a legal point of view, the same-sex marriage argument is fast approaching its end. All the arguments have been made and responded to, and there really isn’t anything new out there. Abbott does arguably have an obligation to defend the laws of his state in Court, of course, and I generally try not to criticize attorneys who advance legal arguments that are legally and factually tenuous. The fact of the matter is, though, that even he has to recognize that the writing is on the wall at this point. Whatever happens at the Fifth Circuit, and the outcome there is by no means certain notwithstanding the fact that the Court’s majority is made up of Judges appointed by Republican Presidents, is almost irrelevant. They will either strike down the ban and marriage equality will spread to Texas, Louisiana, and Mississppi, or they will uphold and the case will head to the Supreme Court where it will likely serve as the vehicle for the Justices to have their final say on this issue.

If you care to read the brief that Abbot field, you can do so here:

DeLeon et al v. Perry et al Texas 5th Circuit Brief by Doug Mataconis

FILED UNDER: Campaign 2014, Law and the Courts, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. anjin-san says:

    If anyone has made any argument against marriage equality that has any merit at all to it whatsoever, I would like to know about it.

    This behavior is not “silly” it is hateful. It is also comfortably within the mainstream of conservative politics.

  2. stonetools says:

    You see, that’s the difference between Wendy Davis and Greg Abott. Say what you like about her ads, at least she isn’t actively working to screw a whole class of people out of their rights on the flimsiest of legal pretexts.
    For that reason alone, Davis is preferable to Abott, even if he is wheelchair bound. Abott should have heeded the lesson of another wheelchair bound politician and sought to help the the few, the poor and the weak against those with wealth, power, and numbers. Instead he is doing the opposite.

  3. C. Clavin says:

    All the arguments have been made and responded to, and there really isn’t anything new out there.

    If that mattered the entire Republican agenda would be fast approaching it’s end.

  4. OzarkHillbilly says:

    I got married so my wife would get my pension, she deserves that at the very least. I guess Greg Abbot would prefer my union get it

    …..

    Ooooops …. wait a minute…. he would prefer I didn’t have a union OR a pension. Problem solved.

  5. wr says:

    Didn’t you just tell us it was the AG’s duty to advance any argument — no matter how ridiculous or vile — to protect the interests of his client, the state government? In fact, didn’t you say that about this very AG? So what’s the problem here?

  6. OzarkHillbilly says:

    @wr: The election polls Doug so assiduously pays attention to mean nothing as well. Move along now.

  7. Hal_10000 says:

    Put another way: the state is running out of reasons to oppose gay marriage.

  8. wr says:

    @OzarkHillbilly: Hey, I pay attention to the polls, too, even though I know (or sometimes hope) they mean nothing. Some people like baseball…

  9. Neil Hudelson says:

    Yeah! Boo Doug!

  10. edmondo says:

    If Texas really wanted to reduce the number of out-of-wedlock births then why did they enact draconian abortion limits?

  11. Franklin says:

    @wr: I don’t think Doug ever suggested that the arguments could or should be ridiculous or vile. Just because you don’t believe in tort reform doesn’t mean all arguments for it are inherently ridiculous or vile. BTW, nobody seemed able to answer me in the other thread about what the difference was between that and say, what a criminal defense lawyer does.

    Now, as for the actual subject of this post, I actually failed to understand Abbott’s point until Doug stepped through it carefully. So I guess what he is suggesting here, then, is that the special rights afforded to married couples is an incentive to get married in the first place, and therefore … um, I guess he wants gay people to be incentivized to get married to the opposite sex and have children? Because there’s nothing better for kids than a parent who doesn’t want to be in a sham marriage …

  12. Jenos Idanian #13 says:

    Two thoughts come to mind:

    1) Abbott recognizes that he has a duty to defend the law, but his heart really isn’t in it, so he did a half-assed job.

    2) The state is under no legal obligation to justify any particular law as a good idea, just that it has the right to make a certain law. It’s usually done, and it’s generally a good thing if you can explain why a certain law is a good idea, but it’s not exactly required anywhere. All you have to show is that there is a legal justification for the law.

  13. Just 'nutha' ig'rant cracker says:

    @wr: Well in this case, the fact that the argument presented is not aligned to the question it purports to answer may be a sticking point.

    But I can see the pro-Abott advertisement now–Vote for Abott for Governor; do we really want a guy who reasons like this to return to practicing law?

    Or: Protect Texas litigants–Keep Abott in government!

  14. Just 'nutha' ig'rant cracker says:

    @Jenos Idanian #13: Just wonderin’–how does what Abott argued accomplish task 2? Not seein’ the connection as “the state has the right to enact a certain law” was the part that was thrown out in the first ruling.

    Follow up question about point 1: Is a RINO Greg Abott better than a principled, but flawed, Wendy Davis? If so, por que?

  15. Jenos Idanian #13 says:

    @Just ‘nutha’ ig’rant cracker: Just wonderin’–how does what Abott argued accomplish task 2?

    Didn’t say that it was an explanation, but it was a related thought. I’ve seen it used by people when they are challenged as to why they chose to exercise a right, and I kind of like it. “Why did you walk down the street with your gun in your holster?” “Because I felt like it, and because it’s my right.”

    Alternately, one gun owner said that he might call his open carry “an act of performance art.” That appeals to me, too.

    Of course, this is not limited to just 2nd Amendment rights. Any exercise of a Constitutional right can be so defended. And it occurred to me that it’s also a perfectly valid defense for why a state passes a law. Because, in answering the question, there’s an implicit acknowledgement that the action in question is subject to someone else’s approval if they don’t approve of the reason why.

  16. grumpy realist says:

    @Jenos Idanian #13: Given the silliness of this argument, one does have to wonder about this critter. Almost as if he decided to find the most flapdoodlin’, easily refutable argument out there.

    “Hey, you guys said I had to defend the anti-SSM position. You didn’t say I had to come up with a GOOD argument!”

  17. Ron Beasley says:

    Is there anything that Abbott has said that isn’t silly. Even my very Republican sister in Houston will not vote for him .

  18. Jenos Idanian #13 says:

    @Just ‘nutha’ ig’rant cracker: Follow up question about point 1: Is a RINO Greg Abott better than a principled, but flawed, Wendy Davis? If so, por que?

    A bit of a hypothetical, as it presumed a “principled” Wendy Davis. Ain’t no such critter in this race.

  19. Barry says:

    @edmondo: “If Texas really wanted to reduce the number of out-of-wedlock births then why did they enact draconian abortion limits?”

    Mandatory IUD’s?

  20. wr says:

    @Franklin: “BTW, nobody seemed able to answer me in the other thread about what the difference was between that and say, what a criminal defense lawyer does.”

    Really? I thought someone had. Basically, it is the job of a criminal defense lawyer — the sole job — to defind the client. An attorney general’s job isn’t merely to defend the decisions of the government but to work to attain justice for the people of the state.

  21. steve q says:

    It’s kind of impressive that of the millions and millions of bigots who are anti-SSM, not a single one has been able to come up with an argument which isn’t prima facie ludicrous.

  22. Franklin says:

    @wr: If they did, I missed it. But point taken.

  23. wr says:

    @Franklin: I wish I could remember who it was. Because I read it and thought “yeah, that’s what I was thinking.”

  24. Jenos Idanian #13 says:

    @steve q: It’s kind of impressive that of the millions and millions of bigots who are anti-SSM, not a single one has been able to come up with an argument which isn’t prima facie ludicrous.

    Agreed. And if you want a good counter to the “if gays are allowed to marry, what’s to prevent polygamy/incest/bestiality,” I can offer you some pretty good rebuttals to that.

    I’ve always been a stickler for the issue on procedural grounds — I don’t like it being imposed by judges, but prefer it done by some sort of public mandate — referendum or legislative action. And that’s partly on principle, partly on practicality — if you give the opponents to at least have their say and a fighting chance to prevail, then they tend to be more accepting about the outcome. But when they can argue that they weren’t even given a chance to make their case and sway people to their side, they tend to double down and fight even harder.

  25. Just 'nutha' ig'rant cracker says:

    @Jenos Idanian #13: Nice dodge. Now, allow for the hypothetical and answer the main question.

  26. Jenos Idanian #13 says:

    @Just ‘nutha’ ig’rant cracker: OK, let’s assume Davis is principled. She’s also got a long record of running out on commitments and no real record of accomplishments. Abbott has a record of getting things done.

  27. Grewgills says:

    @Jenos Idanian #13:

    I don’t like it being imposed by judges, but prefer it done by some sort of public mandate — referendum or legislative action. And that’s partly on principle, partly on practicality — if you give the opponents to at least have their say and a fighting chance to prevail, then they tend to be more accepting about the outcome.

    Do you feel the same about Loving v Virginia? or Brown v Board of Education? Would it have been better and gone more smoothly if the courts had waited for society to catch up in all of the states?

  28. Jenos Idanian #13 says:

    @Grewgills: How do you feel about the Dred Scott decision? Plessy v. Ferguson?

    And you don’t address the practical aspect of my argument. Look at where the nastiest fights about gay marriage have been. I think we can agree that California is near the top of the list. Then look at where it wasn’t such a big deal. It’s in those states where the people did get their say.

    I have a hunch — a suspicion — that some of the proponents of fighting this in the courts are more interested in beating the other side than actually winning. They want the other side to be humiliated, to be angered, to rub their faces in their defeat. They need that kind of validation that they are right, that they are noble, that they are the good guys.

    It’s the same kind of mentality of the winners after World War I vs. the aftermath of World War II, in a way. And which worked out for the better? Or, if you like, the post Civil War Reconstruction era.

    This gay marriage fight isn’t going to last forever. And after it, we’re still going to have the opponents around. You know those people — they’re our fellow citizens. Our fellow Americans. Let’s lay the groundwork today for a peaceful reconciliation later.

    We’ll have plenty of enemies in the future. We don’t need to make more needlessly.

  29. Grewgills says:

    @Jenos Idanian #13:

    I think we can agree that California is near the top of the list.

    I was there for the CA fight. Most of the nastiness came from out of state and the majority of Californians are content with the issue now.

    I have a hunch — a suspicion — that some of the proponents of fighting this in the courts are more interested in beating the other side than actually winning. They want the other side to be humiliated, to be angered, to rub their faces in their defeat.

    If you actually think that, then you have been spending too much time on right wing web sites and/or fox news.

    This gay marriage fight isn’t going to last forever.

    If we’re waiting on Alabama, Mississippi, Texas etc to come around it’ll last our lifetimes or longer. In this way it is very similar to Loving v Virginia, yes the deep south might have come around in the end, but unless they were dragged kicking and screaming it wasn’t going to happen anytime soon. It is quite possible that there could still be hold out states even now if the issue hadn’t been forced then. Most people in the deep south now don’t oppose interracial marriage, but it has been the law for about 50 years.

    BTW you didn’t answer my question. Do you think the decision on interracial marriage should have waited for the states to individually legalize or do you think that Loving v Virginia was correctly decided?

  30. Jenos Idanian #13 says:

    @Grewgills: If you actually think that, then you have been spending too much time on right wing web sites and/or fox news.

    Apparently you haven’t spent much time in the comments threads here. You should have seen the glee when people who didn’t want to participate in gay marriage (cake makers, wedding venues, photographers, and the like) were informed that they had to do so, or get shut down. It was a perfect example of what I’m talking about.

    Do you think the decision on interracial marriage should have waited for the states to individually legalize or do you think that Loving v Virginia was correctly decided?

    At that point, the fight was pretty much over on the national level. It was down to 16 states in 1967, and was hurting. Note that the actual original case was from 1958.

    And if you wanna play the “you didn’t answer” game, why shouldn’t Dred Scott and Plessy v. Ferguson have been left to stand?

  31. Grewgills says:

    @Jenos Idanian #13:

    You should have seen the glee when people who didn’t want to participate in gay marriage (cake makers, wedding venues, photographers, and the like) were informed that they had to do so, or get shut down.

    I was here and you are mischaracterizing the response.

    At that point, the fight was pretty much over on the national level. It was down to 16 states in 1967, and was hurting.

    And those 16 states were holding on tooth and nail. Do you think the people in those states should have had to wait until the racists majorities in those states came around? You still haven’t answered.

    And if you wanna play the “you didn’t answer” game, why shouldn’t Dred Scott and Plessy v. Ferguson have been left to stand?

    Because they were wrongly decided. I have never said the Supreme Court is inerrant and have disagreed with a number of cases. Loving v Virginia, Brown v Board of Education, and Windsor are not among the ones I disagree with.