Opponents of marriage equality keep trotting out the same tired arguments in an attempt to justify legalized discrimination against LGBT families. In state after state, federal courts keep knocking those arguments down. But Texas Attorney General Greg Abbott makes essentially the same already-rejected arguments anyway in a new court brief defending the Texas ban on same-sex marriage.
The brief was filed with the 5th U.S. Circuit Court of Appeals, where the state is appealing a state district court judge’s February ruling that the ban is unconstitutional. …
Abbott’s office contends that a same-sex marriage ban meets the Equal Protection Clause’s prescription that laws “be rationally related to a legitimate state interest.” The state argues that promoting opposite-sex marriage encourages the birth of children “in the context of stable, lasting relationships” in a way that same-sex marriage could not.
More fundamentally, the brief says, the courts should not overrule Texas voters’ decision in 2005 to define marriage in the state constitution as “solely the union of one man and one woman.”
Regardless of the court’s legal authority to strike down same-sex marriage bans, the attorney general argues, democracy would be better served by allowing voters to decide.
The brief also argues that the state doesn’t need to prove that same-sex marriage is detrimental to the state interests, but simply that opposite-sex marriage is more beneficial. The state says a ban on same-sex marriage does not contradict the U.S. Constitution, U.S. Supreme Court rulings or the country’s history and traditions.
This passage in Abbott’s court brief stuck out for us:
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. 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. 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.
First, there is evidence that opposite-sex marriages are not necessarily more “stable” and “lasting” than same-sex unions. Consider this British study from 2012, for example:
The most recent evidence from the UK Office of National Statistics finds that homosexual couples that joined in 2005 were significantly less likely to have filed for dissolution four years later than heterosexual couples were to have filed for divorce: 2.5% compared to 5.5%.
A 2011 study from the Williams Institute at the University of California Los Angeles reported similar findings. The point here isn’t that a same-sex marriage would necessarily be more stable than an opposite-sex marriage either. Who could really know either way? But our state’s chief law enforcement officer simply presents as fact something he can’t prove and for which there is contrary evidence.
And what does Abbott mean by “naturally produce children”? Some children are conceived through artificial insemination or surrogacy, for example. Is that “natural” if it happens within the context of an opposite-sex marriage but not a same-sex union? Moreover, many couples — opposite- and same-sex — adopt children because they are not able to conceive “naturally” (however Abbott chooses to define the term). After all, one or both partners in an opposite-sex marriage can be infertile or otherwise unable to conceive. And many opposite-sex couples simply choose not to have children. But the state doesn’t bar them from getting married.
A federal court, ruling in Kitchen v. Herbert in December 2013, made similar points in striking down Utah’s ban on same-sex marriage. That court also noted that procreation isn’t always the purpose of getting married anyway, whether for same- or opposite-sex couples:
The court does not find the State’s argument compelling because, however persuasive the ability to procreate might be in the context of a particular religious perspective, it is not a defining characteristic of conjugal relationships from a legal and constitutional point of view. The State’s position demeans the dignity not just of same-sex couples, but of the many opposite-sex couples who are unable to reproduce or who choose not to have children. Under the State’s reasoning, a post-menopausal woman or infertile man does not have a fundamental right to marry because she or he does not have the capacity to procreate. This proposition is irreconcilable with the right to liberty that the Constitution guarantees to all citizens.
Finally, let’s consider for a moment Abbott’s argument that the decision about whether the state recognizes same-sex marriages should be left to the voters of Texas. We wonder: what fundamental rights enjoyed by himself would Abbott be willing to put to a vote by the general public?