The Dallas Morning News reports that Attorney General Greg Abbott has appealed the Federal Court case regarding the constitutionality of Texas’ ban on same-sex marriage. Back in February, as many will recall, a Federal District Judge in San Antonio struck down an amendment to the Texas constitution that explicitly bans both same-sex marriage and any type of civil union or domestic partnership. Today, Abbott filed a brief and appeal with the Federal Appeals Court, the Fifth Circuit based in New Orleans.
The news that the case has been appealed and that Abbott, who despite being the Republican candidate for Governor is still the chief lawyer for the State, is among those leading the charge should not be seen as very surprising news. What is surprising is the tactics he used to attempt to prove the constitutionality of the provisions, laws and amendments denying same-sex couples the ability to marry.
Abbott went full right-wing and argued that the prohibitions are necessary because they foster heteronormativity and lead to more procreation. He also contended that, since the constitutional amendment was approved by State voters, the courts should be especially wary of overriding the public’s opinions.
Abbott’s second allegation is a logical argument that necessitates some discussion, but the first one is not. This is the same main defense used by proponents of Proposition 8 in California. Maintaining that the entire institution of marriage centers around having babies is not only silly, it is outdated and wrong. What about old people who get married well past the typical age of childbirth? What about sterile/barren people? And, of course, does this mean a couple that chooses to remain childless has somehow failed the central goal of marriage. Of course not, because the goal of marriage is nothing more than two people happily living together in matrimony. Slate published an overall stellar piece on all this a couple of years ago, but the gist of it is that this is a silly point to make. The evidence is quite clear in that same-sex marriage does not reduce the birthrate, but that is neither here nor there.
The better point that Abbott made was that the courts should not override public opinion. This is a particularly swell argument for use in the court of public opinion, since people of all political persuasions could easily find a court case they disagree with. For conservatives, it’s Roe or a gay marriage case, and for liberals it’s Citizens United or Hobby Lobby. The idea that unelected judges should not trump the public will might be a cheap stunt, but it’s effective. As for its legal value, it is only slightly more valuable than the preceding point. The concept of judicial activism has ensured the superiority of the judiciary for over 200 years.
The point that Abbott should have made is one of technocratic impulses, not from flashy politics. Abbott merely should have said, as the sworn defenders of Texas’ laws, he was appealing a case that the State was a party to. This is an argument that I am actually quite sympathetic toward.
I did not agree with the Supreme Court in Hollingsworth v. Perry last year. The case, which was widely lauded as it brought about the legalization of gay marriage in California, allowed the State to choose not to appeal a law they were forced to defend. Perhaps it’s just me, but I thought that the government had an obligation to defend its own laws. The parallel I suggest is that, if a Republican were elected Governor of Vermont, and the State’s single-payer healthcare plan were struck down in Court, why should the new Governor choose not to defend the old law?
This isn’t to say that I strongly disagree with Abbott on the overall point with same-sex marriage, merely that we shouldn’t lambaste him for actually doing his job. There are better things to criticize him on.