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On Greg Abbott and who gets to get married

As you may have heard, Peggy Fikac got to ask Greg Abbott the obvious question about how exactly the state’s law against same-sex marriage, which Abbott is diligently defending in court, differs from the old laws that once banned interracial marriage, and would he have defended those as well since he claims he’s just doing his job as the state’s lawyer.

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It didn’t take Texas Attorney General Greg Abbott any time at all to decide that not answering that question was the best course during a meeting with the San Antonio Express-News Editorial Board.

“Right now, if there was a ban on interracial marriage, that’s already been ruled unconstitutional,” Abbott pointed out. “And all I can do is deal with the issues that are before me … The job of an attorney general is to represent and defend in court the laws of their client, which is the state Legislature, unless and until a court strikes it down.”

When I said I wasn’t clear if he was saying he would have defended a ban on interracial marriage, he said, “Actually, the reason why you’re uncertain about it is because I didn’t answer the question. And I can’t go back and answer some hypothetical question like that.”

Asked about the similarities some see between the ban on gay marriage and past prohibitions on interracial marriage, Abbott said, “Well, the Supreme Court has disagreed with that” by holding that sexual orientation isn’t due protected-class status in the way that race is.

[…]

“What kind of state would we live in if the public policies of this state were allowed to be determined by the attorney general? The attorney general would have a super veto over the elected representatives, and that would be a chaotic form of government, contrary to our fundamental constitutional principles,” he said. “It would be way beyond the separation of powers. It would be a dictatorship… by the attorney general.

“Believe me, I would love it,” he added, “The state would look a whole lot more like me right now if I did abandon my role and exercised my magic wand and decided what cases I would defend and which I didn’t, and therefore allowed me to dictate policy in this state.

“But I think that by doing what I do, I am maintaining the policy that I think is appropriate, and that is for each elected official to fulfill their constitutional obligations,” he said.

Not surprisingly, this broke the Internet as people around the globe reacted with gasps, guffaws, facepalms, and sputtering outrage. The Wendy Davis campaign was swift to jump all over this. One reason for the outpouring was the basic fact that Abbott’s answer was, in a word, a crock. The DMN points out one problem with it:

Other attorneys general, citing their oath of office to uphold the Constitution, have refused to defend certain policies, laws and judgments.

John Cornyn, now a Republican U.S. senator, as attorney general voluntarily dropped an appeal of a death penalty case and sought a new punishment hearing. He determined he could not defend the punishment meted out to a black defendant after the state presented an expert witness who had testified that blacks are more inclined to violence.

Former Attorney General Jim Mattox, a Democrat, refused to defend a state law that criminalized homosexual conduct. He dropped the appeal of that law.

In other words, previous attorneys general have felt free to follow their conscience when they thought that the situation merited it. The Observer cites an example of Abbott’s folly by sticking to his mantra.

But while the Attorney General may have to mount some kind of defense of the state, he has “a tremendous amount of discretion” over how aggressively to prosecute those cases, how “effectively” to prosecute cases, and which cases to bring to court. Abbott has been using his stint as AG to campaign for governor for years—he’s brought failed case after failed case against the federal government, costing Texas taxpayers millions. But his hands are tied when it comes to gay marriage and school finance, he insists. He has to aggressively defend bad laws to the last.

Abbott’s tenure has included a number of instances in which he pursued comically bizarre legal arguments in cases for which he could have no reasonable hope of victory—seemingly forfeiting his powers of discretion. In 2008, Abbott chose to defend the state’s ban on the sale of sex toys, a case that emerged from the fallout of Lawrence v. Texas. Over the years, Abbott has deployed novel legal arguments against gay marriage. But this wasn’t a case about gay marriage, a subject that still animates sincere moral disagreements. This was a case about every American’s god-given right to buy dildos.

At the time, anti-sex toy laws were widely understood to be unconstitutional, but Abbott suited up for battle. The state, his lieutenants argued with straight faces before the 5th Circuit, had an interest in “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.” The state of Texas has a pressing interest, Abbott said, in discouraging you from masturbating or blowing your boyfriend. That was just six years ago.

By the way, the law that criminalized gay sex, which was the basis of the Lawrence v. Texas case, is still on the books in Texas, as our Republican-dominated Legislature has not seen fit to repeal it. If the Legislature instead decided to amend that law by offering reparative therapy as an alternate sentencing option for defendants – an action that would clearly be unconstitutional on its face but would nevertheless represent the will of his client – would he feel compelled to defend that?

I know, I know, that’s another hypothetical, and Greg Abbott doesn’t do hypotheticals. So let me ask this instead: Can Greg Abbott name one instance in his time as Attorney General when he had to defend a law or regulation that he didn’t support or approve of? Putting aside the obvious discretion he has used in deciding what lawsuits to file and what defendants to file them against, can he cite an example of a law he didn’t like but had to defend? I kind of suspect the answer to that is “no”. Maybe that’s not fair to him – maybe the opportunity just never arose – but regardless, it would put his “just doing my job” claim into some perspective. It’s a lot easier to just do your job when your job involves doing things you like and want to do. It’s a little different when you do something with the same vigor and diligence for a cause you wouldn’t have chosen to support but are compelled to because it’s your job. BOR and Lone Star Q have more.

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