Abbott appeals gay marriage case

Photo source: Texas Monthly

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 Maintaining that the entire institution of marriage centers around having babies is not only silly, it is outdated and wrong.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.

Texas gay marriage ban struck down

The Texas Tribune reports that Federal Judge in San Antonio has struck down Texas’ constitutional ban on gay marriage. The decision, written by Judge Orlando Garcia (an appointee of President Clinton), found the provision inconsistent with the 14th Amendment of the Constitution, which mandates equal protection and due process under law. Judge Garcia has served on the Federal Judiciary since 1994, and previously served both as a Justice on the State Court of Appeals (1991 to 1994) and as a member of the Texas House of Representatives (1983 to 1991). Both were elected offices he held as a Democrat.

Judge Garcia also stayed his own ruling, pending appeal. Attorney General Greg Abbott, one of the key defendants in this case, released a somewhat brief statement on the subject, wherein he declared his intention to appeal the case to the Federal Appeals Court. Of note is just how lightly Attorney General Abbott tread on the subject. Among his quotes were that there were “good, well meaning people” on either side of the issue. In my opinion, that was the most telling tidbit on the subject, to see hard-right Republicans such as Abbott realize and accept the inevitable, that this issue is not going away.

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Hearing set on Gay Marriage ban

The San Antonio Express-News reports that Federal District Judge Orlando Garcia (a Clinton appointee who had previously held both Judicial and non-Judicial office in Texas as a Democrat) has set a hearing on the constitutionality of the ban on gay marriage and civil unions in Texas. The hearing, which will be held on February 12, will determine if a temporary injunction should be granted against enforcement of the provision. That being said, even if the District Court agrees with plaintiffs, such a decision would probably be summarily quashed by the Fifth Circuit upon emergency appeal, as what happened in the HB2 saga.

The case involves two couples, a lesbian one from Austin who had legally been married when residing in Massachusetts, as well as a gay one from the DFW area who, as far as I can tell, simply want to get married though have not done so yet. Plaintiffs admit that this case is meant to eventually consolidate with others from around the nation in order to present a compelling case to the Supreme Court to overturn bans on gay marriage.

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