Attorney General Greg Abbott is defending the state’s same-sex marriage ban using a widely rejected “responsible procreation” argument, bolstering gay rights advocates’ hopes and raising questions about his chances of success.
“None of the arguments (against gay marriage) have prevailed, but I think that one especially is not compelling and has not persuaded the judges,” said University of Richmond School of Law Professor Carl Tobias.
Tobias added, “The courts so far that have discussed that argument have pretty much rejected it out of hand.”
Evan Wolfson, founder and president of Freedom to Marry, a national nonprofit aimed at overturning same-sex marriage bans across the country, went further: “It’s the last desperate argument of those who don’t have an argument.”
LGBT (lesbian, gay, bisexual and transgender) and pro-gay marriage activists were surprised Abbott led with the “responsible procreation” argument since it has been rejected in the 10th and 4th Circuit Courts.
“It hasn’t succeeded very often because it doesn’t make a whole lot of sense and it doesn’t really comport with what most of us think about marriage,” said Rebecca Robertson, legal and policy director for the American Civil Liberties Union of Texas. “(State law) doesn’t have to be perfect. It just has to be reasonable.”
Any outcome in the 5th Circuit would be a win for the gay marriage movement, said Steve Rudner of Equality Texas.
If the court upholds Judge Garcia’s ruling overturning the ban, it will bolster LGBT activists’ case. If it becomes the first appeals court to toss out such a ruling, creating a circuit court split, it could put the Texas case on a fast-track to the U.S. Supreme Court.
“I think Greg Abbott, in a strange way, if he succeeds in the 5th Circuit, will be doing people a favor,” said Rudner.
The New Orleans court is widely considered one of the nation’s most conservative, making it a likely source of such a split, experts agreed.
“If you’re going to get a circuit court split, it would probably be here,” said Kyle Duncan, a former Louisiana solicitor general most recently with the Beckett Fund for Religious Liberty in Washington, D.C. In February, Louisiana Attorney General Buddy Caldwell hired Duncan on contract to handle that state’s gay marriage case.
Yes, we all agree that the Fifth Circuit sucks. It’s just a question of whether they suck enough to buy this load of hooey or not.
One more thing, from the Statesman story:
In their effort to preserve Texas’ ban on same-sex marriage, state lawyers have repeatedly argued that the restriction doesn’t single out homosexuals for different treatment.
Like every other Texan, the argument goes, gays and lesbians are free to marry — as long as their betrothed is a member of the opposite sex — and therefore the ban on same-sex marriage doesn’t violate the U.S. Constitution’s guarantee of equal protection under the law.
I hadn’t really thought about it this way till I saw this summary of the brief, but when I read it I was reminded of Michael Li’s analysis of Abbott’s brief from the redistricting lawsuit, filed last August. You may recall that the state’s argument for that case is that the Republican Legislature did not discriminate against minority voters, they were just acting in partisan self-interest, which just happened to have an unfortunate but completely unavoidable and not at all illegal effect on minority voters. As Li put it, this is basically saying that Republicans would be fine with non-Anglo people voting, as long as they voted Republican. There’s a Grand Unification Theory of Greg Abbott’s legal philosophy in there somewhere, if you’ve got the time to pursue it. Forrest Wilder, who read through the entire brief so we don’t have to, and the AusChron have more.