Attorney General Greg Abbott often makes the point that government should tread lightly in matters of personal liberty. Yet in a legal brief defending Texas’ ban on same-sex marriage, the GOP candidate for governor treads heavily.
Abbott is appealing a federal judge’s ruling that found Texas’ voter-approved ban in 2005 on same-sex marriage to be unconstitutional. In legal documents filed to the 5th U.S. Circuit Court of Appeals in New Orleans recently, his legal team argued that Texas can ban same-sex marriage based on the state’s interest in couples having children.
Abbott notes that Texas law recognizes marriage as being between a man and a woman and argues that, in turn, a heterosexual marriage “increases the likelihood” that they will produce and raise their children in “stable, lasting relationships.” Therefore, the brief continues, “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.”
That is a legal reach. Actually, state marriage laws are not rooted in establishing “stable, lasting relationships” that produce children but are designed to clarify property and inheritance rights. Creating children has never been a state goal, nor is it a credible argument against same-sex marriages. There also are many reasons heterosexual couples get married that may or may not include having children. Certainly, they would be surprised to learn Abbott thinks Texas has a vested interest in whether they have offspring.
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The Texas ban was challenged by a Texas couple who wanted to marry and by a couple who married in Massachusetts and wanted their marriage recognized in Texas. In striking down the Texas law earlier this year, federal Judge Orlando Garcia concluded that “without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution,” specifically the guarantees of equal protection and due process.
Article continues belowWe agree, and find Abbott’s argument to be a grasp at legal straws. Societal and cultural tides are shifting on this issue. At least 19 states permit same-sex marriage, many of them since the Supreme Court overturned the Defense of Marriage Act last year, clearing the way for federal judges to strike down bans. A variety of voices ranging from Dallas Mayor Mike Rawlings to former Vice President Dick Cheney to President Barack Obama also support same-sex marriage.
This newspaper, which opposed Texas’ constitutional amendment banning gay marriage, nonetheless respects religious traditions against it, as well as the First Amendment, which protects places of worship from being compelled to conduct same-sex marriages.
That said, Abbott’s claim of a rational, vested state interest in procreation is a step too far.
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