Texas AG Makes Terrible Arguments in Same-Sex Marriage Brief

Texas Attorney General Greg Abbott, who is also the Republican nominee for governor to replace Rick Perry, has filed the state’s primary brief in the 5th Circuit Court of Appeals case challenging the ban on same-sex marriage. His arguments are every bit as bad as one would expect.

Writing in a brief filed to the Fifth Circuit Court of Appeals on Friday, Abbott said the state was not obligated to prove why gay marriage might be detrimental to the economic or social well-being of Texans. It was only required to show how opposite-sex marriage would be more beneficial for its citizens.

“The State is not required to show that recognizing same-sex marriage will undermine heterosexual marriage,” the brief read. “It is enough if one could rationally speculate that opposite-sex marriages will advance some state interest to a greater extent than same-sex marriages will.”

Uh, why? If the state decided that farming was better for the state than, say, being an artist, would they then be allowed to ban art? Of course not. They would have to show that allowing B would somehow affect A, which they can’t do. And all of the arguments for why straight marriages are good for children — it encourages commitment and stability and provides legal protections — apply just as well to gay marriages.

The new filing largely reiterated the same “responsible procreation” argument Abbott made in July, when the state first appealed a a February district court’s ruling overturning the Texas gay marriage ban. In it, Abbott argued marriage among heterosexual partners is more beneficial to society because it encourages married couples to have children and provides an example for other couples to do the same.

“First, Texas’s marriage laws are rationally related to the State’s interest in encouraging couples to produce new offspring, which are needed to ensure economic growth and the survival of the human race,” Abbott wrote.

He added, “Second, Texas’s marriage laws are rationally related to the State’s interest in reducing unplanned out-of-wedlock births. By channeling procreative heterosexual intercourse into marriage, Texas’s marriage laws reduce unplanned out-of-wedlock births and the costs that those births impose on society. Recognizing same-sex marriage does not advance this interest because same-sex unions do not result in pregnancy.”

But if you can’t show that allowing same-sex marriages will have any effect on those things at all, you don’t have a rational justification for prohibiting them and refusing to recognize them. It’s the same old dumb argument: marriage is good so gay marriage is bad. It’s a giant non-sequitur, the conclusion simply does not follow from the premise.

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  • Doc Bill

    The single mother birth rate in Texas is about 40% and the national average is about %35. (Based on a quick Google search, corrections appreciated!)

    Following Abbot’s logic and considering the current marriage laws in Texas, shouldn’t that birth rate be less? Is Abbot suggesting that an equal marriage law would INCREASE the rate beyond 40%? I think that’s what he’s saying.

    Also, following Abbot’s logic, what about marriage between old people, or sterile people, or people who just don’t want kids, or people in wheelchairs who can’t reproduce? According to Abbot, if a tree falls on my dick I can’t get married. Hell of a note!

    I can’t imagine Abbot prevailing, but I bet against Hobby Lobby, too.

  • John Pieret

    He is being a little more subtle than the other anti-SSM ban defenders. He is, of course, assuming that the courts should apply the lowest standard of scrutiny, “rational basis.” The funny thing about that standard is that a rational basis does not have to be, in fact, rational. Or, more correctly, courts are not supposed to apply the judges’ evaluation of what is rational to the government’s actions, but only examine if a “reasonable legislator” might think it was rational.

    But also, of course, Ed is right that it is a non sequitur. The action taken was not related to the stated objective, channeling procreative heterosexual intercourse into marriage, but was only intended to prevent same-sex marriages, which Abbot himself says has nothing to do with procreative reproduction. The fact (if it is that) that SSM has no role in the state’s objective re heterosexual reproduction doesn’t mean the state gets to ban SSM.

  • lanir

    Oh. Right. I am quaking in fear for the continuation of the human race. But wait… TEXAS has it covered! Now I feel better. *facepalm*

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Sure, but his arguments pass the Irrational Basis test.

  • Kevin Kehres

    Did he not read Judge Posner’s ruling? Any of it? This is exactly the same argument that he mocked out of hand.

    Incompetence is not an excuse when arguing before a court.

  • Chiroptera

    Because the only reason the human population is only SEVEN BILLION is too many people are gay marrying.

  • vmanis1

    Actually, the anti-equality folks have a serious problem. Their arguments are being literally laughed out of court. I quoted Judge Heyburn’s remark that `these arguments are not those of serious people’ in another thread. The Seventh Circuit decision, written by Judge Posner, included the wonderful comment `Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.’ And the Ninth Circuit was no less derisory in its dismissal of the Idaho appeal: `[Otter] also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs,and rock-and-roll.’

    I’m glad that judges feel free to say what they think.

  • Reginald Selkirk
  • colnago80

    Re Kehres @ #5

    Unfortunately, Judge Posner won’t be on the panel hearing Abbot’s arguments.

    By the way, the 9th Circuit applied intermediate scrutiny to the question which was the basis of Idaho’s appeal to the SCOTUS for a stay of the order. The SCOTUS turned down the state’s request without comment. This may mean that the SCOTUS may ultimately apply a scrutiny higher the rational basis (possibly Judge Jones’ rational basis with bite scrutiny).

  • colnago80
  • Loqi

    Following the logic that if we can “rationally speculate” that one option is preferable to another in some way, I hereby call for a ban on all jobs that are not CEO.

  • Loqi

    Wow, I cut out a few sentences in there. Everyone please pretend my last comment was coherent in the same way the anti SSM folks pretend their arguments are.

  • dhall

    #3 and #6 – yes, thank gawd that Texas has a plan to save the human race from extinction. Course, some people in Texas screwed up that whole Ebola thing, but other than that . . .

    It makes you wonder if each appeals team has paid no attention whatever to the fate of previous dumb arguments, or if they simply cannot think of anything better, or they believe that if the argument is tried often enough, there will be a breakthrough. Argument through repetition/verbosity.

    But then, the only possible arguments are dumb ones.

  • D. C. Sessions

    Wouldn’t it be lovely if the Court, in its ruling, stated that given the eloquence already lavished on the subject by the Ninth and in particular Judge Posner, it declines to readdress these arguments with its own words and instead quotes from their masterful prose: (insert quotations here)

  • Doug Little

    In it, Abbott argued marriage among heterosexual partners is more beneficial to society because it encourages married couples to have children and provides an example for other couples to do the same.

    OK that’s fine and dandy, so how will this be affected by allowing gay people to be married. I think it will actually positively impact families as now there will be more stable family units to adopt unwanted children after all, the fact that gay people can’t have children together (OK they can technically via invitro fertilization or a surrogate) is a feature not a bug when it comes to adoption.

  • scienceavenger

    “It is enough if one could rationally speculate that opposite-sex marriages will advance some state interest to a greater extent than same-sex marriages will.”

    The unstated premise here is that the type of marriage one has is a frivolous choice, like what flavor of ice cream to have, and if SSM is outlawed, everyone will get an OSM. The real question he should have to answer is why it is better to have same sex couples unmarried rather than married. Heterosexual couples aren’t even part of the discussion, and I hope every judge hearing such arguments stops them every time they mention hereosexuals..

    “First, Texas’s marriage laws are rationally related to the State’s interest in encouraging couples to produce new offspring, which are needed to ensure economic growth and the survival of the human race,” Abbott wrote.

    [citation needed] Of all the things the human race does just fine without government encouragement, its procreate. It’s shocking to hear a small government politician so interested in getting the government involved in such a person decision.

  • Katie Anderson

    Strange, after he helped shut down most of the state’s women’s health clinics, I kind of assumed he was in favor of unplanned pregnancies, not against.

  • matty1

    I think I see it. He thinks marriage is a limited resource and if the state lets gay people have some there won’t be enough left over for straight couples who want to raise children. That’s the most charitable interpretation I can put on his argument.

  • magistramarla

    Abbott is constantly bringing up his catholic faith as the source of his opinions.

    I wonder if he is freaking out about the Vatican proposing a dramatic shift in attitude towards gays and same sex couples?

    http://www.huffingtonpost.com/2014/10/13/catholic-church-gays-_n_5976134.html

  • whheydt

    On the assumption that Abbott has an intelligence that is noticeably above room temperature, I think there are several layers to what he is trying to do.

    The first is that the 5th Circuit is considered to be the most conservative appeals court in the country. Abbott may be betting that the judges will *want* to find in Texas’ favor and if he can give them any reason, however thin, they will do so.

    Abbott is hoping that the court will accept “rational basis” scrutiny and, as is common when that is done, not delve into just what the rational basis actually is. He is probably hoping for a result like that in Louisiana.

    By now, everyone knows that the real arguments against SSM are (1) gay sex is icky (to the opponent), and (2) it is against the religion of the person opposing it. Everyone also knows that neither of those arguments will fly in court, so some other arguments must be attempted, no matter how unsupported by the legislative record or how obviously weak and false they may be.

    What I would like to see is for the opposing brief to cite the other circuit decisions ridiculing these arguments and noting that SCOTUS–implicitly, by denying cert–agrees with those other circuits.

    The real question is…can the 5th Circuit take a hint from SCOTUS actions?

  • moarscienceplz

    Hey Abbott!

    (with apologies to Bud and Lou)

    Your silly argument even fails the vaunted Republican argument against excessive government regulation!

  • Usernames! ☞ ♭

    I hereby call for a ban on all jobs that are not CEO.

    — Loqi (#11)

    B-b-but who will clean the executive washroom, then?

  • http://Reallyawakeguy.blogspot.com somnus

    I’m trying to imagine the state of Texas accepting “we don’t have to show why exercising your rights is harmful in order to restrict them,” as an argument in any context unrelated to sex.

  • David C Brayton

    @16 Science Avenger….actually, the human race procreates quite well as a whole. But, there are some countries with declining population and that makes for super-serious problems. Russia, for example, has been paying people to have babies. Economies everywhere are fundamentally premised on continued growth…without more consumers, economies go to to hell.

    I’m not in any way agreeing with Abbott’s arguments.

  • gshelley

    I agree with #20. It’s hard to believe he actually believes this, given how its flaws and inconsistencies have been so thoroughky refuted, so he is probably just hoping to give an anti gay judge some excuse to support the ban.

  • Childermass

    I am not a lawyer, but I after reading it, I think it is fair to say that:

    Bad reasoning with a bunch of legal citations attached is still bad reasoning.

    Actually bad reasoning is still bad reasoning no matter how many citations of any type you add.

  • marcozandrini

    Looks like Abbott’s wheelchair is off the rails!

  • eric

    Abbott argued marriage among heterosexual partners is more beneficial to society because it encourages married couples to have children and provides an example for other couples to do the same.

    That last part is essentially flipping the bird to gays. “You see, we get all these economic benefits when we get real-married. So you should follow our example and settle down into your faux-marriages, but not get them.”

    “First, Texas’s marriage laws are rationally related to the State’s interest in encouraging couples to produce new offspring, which are needed to ensure economic growth and the survival of the human race,” Abbott wrote.

    Marriage laws do practically nothing to encourage new offspring. Most of the benefits they provide having have nothnig to do with offspring (such as inheritance and healthcare). And single parents get tax deductions for their dependents too, Mr. Abbott.

    He added, “Second, Texas’s marriage laws are rationally related to the State’s interest in reducing unplanned out-of-wedlock births.

    Complete non-sequitur. How does it do that? Are teens going to not have sex because the state of Texas allows them to get married? Do singles in TX choose to put on condoms or go on the pill (when they otherwise wouldn’t) because of Texas’ marriage laws?

  • colnago80

    Given Abbot’s position, maybe people in wheelchairs shouldn’t be allowed to get married either.

  • Crimson Clupeidae

    Hrm, let’s reword his first assertion a bit, shall we?

    Writing in a brief filed to the Fifth Circuit Court of Appeals on Friday, Abbott said the state was not obligated to prove why gun ownership might be detrimental to the economic or social well-being of Texans. It was only required to show how restricting guns would be more beneficial for its citizens.

    There. That’s better, and I’m sure this idiot wouldn’t find anything wrong with that, right?

  • eric

    @30 – weeeellll, a right to marriage isn’t enshrined in the Constitution, so its not exactly analogous. But you’re right that in the gun case they would likely reject their own legal reasoning.