How weak does your case have to be to have to rely on this?
Texas Attorney General Greg Abbott filed an appeal with the U.S. 5th Circuit Monday regarding the state’s same-sex marriage ban, which was ruled unconstitutional by a federal judge in February.
According to the brief, Abbott said Texas can ban same-sex marriage based on the State’s interest in procreation.
The State contends that marriage between a man and a woman “increases the likelihood” that they will produce and raise their children in “stable, lasting relationships.”
“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,” the brief reads. “That is enough to supply a rational basis for Texas’s marriage laws.”
You can see the brief at the Trail Blazers link above. I mean, seriously, they needed how many delays to come up with that? I guess after nearly 30 courts in a row have ruled against you there are only so many arguments one can reach for, but seriously? Procreation? As many people have been snarking on Facebook and elsewhere, lots of procreation takes place outside of marriage, and lots of marriages do not include procreation. Some people choose not to have children, others are unable to for whatever the reason. Some people get married after having had a vasectomy, or a hysterectomy, or some other permanent form of contraception (often, it should be noted, for reasons having nothing to do with procreation). Some people get married after reaching an age where having children is no longer possible. And on the flip side, not to put too fine a point on it but plenty of same-sex couples, including two of the litigants in the Texas case, are raising children. Some are their own biological children, which as we know has way more obstacles for them to overcome than we straight folks have to deal with, some have adopted, and some have children from previous relationships and marriages. There’s nothing about Abbott’s argument that wouldn’t deserve to be laughed out of a first-year mock trial court.
And hey, if the state of Texas really did care about “furthering the goals” of reproduction, I can think of plenty of far more effective ways for them to do it. Let’s start with expanding Medicaid, since a significant number of births in Texas are already paid for by Medicaid. Expanding Medicaid would also provide health care for more children and their parents. You could raise the minimum wage, which would make having children more affordable for many people, and you could implement sensible and meaningful family leave policies. Did you know that in the absence of a comprehensive non-discrimination law you can get fired for being pregnant? Did you know that workplaces are not required to make any accommodations to pregnant workers? I’ll bet a law that made those accommodations mandatory would have a salutary effect on our state’s fertility rate. Truly universal pre-K would also be a boon for people who have or want to have children. Oh, and then there are all those obstacles I mentioned earlier for same-sex couples that want to have children. We could maybe do something about those, too. In fact, I’m pretty sure that losing this appeal and having our state’s hurtful and discriminatory ban on same-sex marriage struck down would do more to improve the lives of families in Texas than any bullet point in Greg Abbott’s gubernatorial platform. Lord knows, he doesn’t support any of the things I’ve highlighted here.
Which suggests the conclusion that maybe Abbott tanked the appellate brief because he came to these conclusions himself, but of course can’t bring himself to say any of this out loud. That’s would be a better and more sensible rationale for filing this idiotic brief than sincerely believing it’s a winning argument, even for the sucky Fifth Circuit. Even I have a hard time believing they’d buy something that stupid. It’s also possible that he’s making this argument because there are no other arguments he can make. In which case, too bad for him. The Trib, Lone Star Q, and LGBTQ Insider have more.
Some money quotes, taken from amidst the flailing and gaps of logic:
(@ 13): “Opposite-sex couples often cannot help but produce offspring…”
(@ 18): “Some believe that food law should pursue libertarian aims; others think it should promote nutrition or ensure the ethical treatment of animals.”
(@ 19, 20): “All persons in Texas – regardless of sexual orientation – are subject to the same definition of marriage, and the plaintiffs are as free to marry an opposite-sex spouse as anyone else in the State. And all persons in Texas – regardless of sexual orientation – are ineligible to marry a same-sex spouse.” (this one relies on the recent buffer zone case)
Crikey. I’ve read better briefing from law students.
Do you think the two-person limitation to the definition of marriage would also fail the rational basis test? I mean, if reproduction bears no rational relationship to what should or should not be a marriage, then what does? Sexual attraction? Companionship? I’d be interested to know what sort of relationships you would consider to not be marriages, and why.