UPDATE: Neel Lane, one of the attorneys challenging the law, and Carl Tobias, professor at the University of Richmond school of law, said that Abbott is making arguments that previously have been rejected by other courts.
“They’ve had years to think about this, and this is the best that they can come up with. There’s not a good argument against equality. That’s the bottom line. And the attorney general had demonstrated that in his brief,” said Lane.
Tobias said, “I don’t think there’s much new, and virtually no judges have subscribed to those arguments yet. I guess we’ll see what happens when the 5th Circuit looks at that.”
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AUSTIN – Texas Attorney General Greg Abbott’s office told a federal appeals court that the state’s ban on gay marriage should be upheld, saying it was intended to protect children by promoting traditional marriage between men and women who procreate.
Abbott’s office also said in a brief filed with the 5th U.S. Circuit Court of Appeals and released Tuesday that federal courts should leave the marriage issue to states to sort out.
The state’s ban on same-sex marriage was ruled unconstitutional in February by U.S. District Judge Orlando Garcia, who found Texas’ restrictions discriminated against same-sex couples. Garcia said the state’s measure violates equal-protection and due-process protections of the 14th Amendment.
Abbott appealed the ruling, which was among several similar decisions around the country. Garcia stayed the effect of his ruling until the 5th Circuit decides.
“This case is not about whether Texas should recognize same-sex marriage. It is about the question of who decides,” said the brief submitted by Abbott’s office.
It said that Texas laws on marriage “are rooted in a basic reality of human life: procreation requires a male and a female.” He said that the Equal Protection Clause only requires that state law be “rationally related to a legitimate state interest.”
“Texas’s marriage laws easily satisfy that standard. The State’s recognition and encouragement of opposite-sex marriages increases the likelihood that naturally procreative couples will produce children, and that they will do so in the context of stable, lasting relationships,” Abbott’s brief said.
“By encouraging the formation of opposite-sex marriages, the State seeks not only to encourage procreation but also to minimize the societal costs that can result from procreation outside of stable, lasting marriages,” said the brief. “Because same-sex relationships do not naturally produce children, recognizing same-sex marriage does not further these goals to the same extent that recognizing opposite-sex marriage does. That is enough to supply a rational basis for Texas’s marriage laws.”
Abbott said this is a different view than one in which “marriage is primarily defined as a public solemnization of the mutual love and commitment between two people. …Indeed, from the perspective of one who views marriage this way, it is easy to see how there seems to be no legitimate reason to deny same-sex couples access to the legal institution of marriage.”
But the brief signed by Abbott said that for those who view marriage as “inextricably linked to the biological complementarity between men and women,” that marriage as a legal institution “exists primarily to encourage the orderly propagation of the human race by channeling naturally procreative heterosexual activity into stable, responsible relationships.”
Abbott wrote that people “are often governed by their passions. And when the product of those passions can be a child, the State’s interest in steering those passions toward a responsible and stable outlet could hardly be stronger.”
The fact that some opposite-sex couples are infertile or “deliberately childless” doesn’t invalidate that view, Abbott said. Nor, he said, is it nixed by situations in which same-sex couples decide to have children whom, he said, “are are generally the result of the lengthy reflection and financial investment required to seek out physician-assisted fertilization, surrogate parents, or adoption.”
After the ruling against the ban earlier this year, among those celebrating in Austin was the child of two moms, teenager Dawn Goodfriend. She said then that she feels lucky to be part of their “amazing” family and added, “I cannot wait until we have the best gay wedding in the world.”
Sarah Goodfriend, mom to Dawn along with Suzanne Bryant, said then, “I want to get married for Suzanne and for me personally, and I want to get married for the sake of our two beautiful daughters. Marriage says we are a family like nothing else can.”
Democratic Sen. Wendy Davis of Fort Worth, who is running for governor against the Republican attorney general, has urged him to stop defending the state constitutional provision that defines marriage as being between a man and a woman. She pointed earlier this year to Virginia and Nevada attorneys general making such a decision and said Abbott “has the capacity to do the same if he chooses to do so.”
“It’s my strong belief that when people love each other and are desirous of creating a committed relationship with each other that they should be allowed to marry, regardless of their sexual orientation, ” Davis told the Express-News Editorial Board earlier this year.
I’ve emailed lawyers challenging the ban to see if they have a comment, and will update if they do.
