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A Closer Look at Greg Abbott’s Arguments For Same-Sex Marriage Ban

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Attorney General Greg Abbott
Patrick Michels
Attorney General Greg Abbott

Yesterday, we got a look at the arguments Greg Abbott is deploying at the Fifth Circuit Court of Appeals in favor of upholding Texas’ ban on same-sex marriage. His legal brief follows a decision in February by a federal district court judge in San Antonio that banning same-sex couples from marriage is unconstitutional and “demean[s] their dignity for no legitimate reason.” As state marriage bans crumble in rapid succession around the nation and public support (even in Texas) for marriage equality grows, it’s fascinating to see what arguments the attorney general of the nation’s biggest, boldest red state airs in front of the most conservative appellate court in the country. How do you win a battle when your side is losing the war? The 42-page brief contains many well-worn conservative hobby-horses as well as some startling views of sex and marriage. We’ll go into the details below but for those of you with short attention spans, here are a few highlights:

  • Texas can ban same-sex marriage, Abbott argues, because the state has a legitimate interest in promoting procreation, a biological feature of the pairing of men and women. “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.”
  • Abbott argues that Texas should ban same-sex marriage so outcomes can be studied and compared to states where it’s legal. “[S]ame-sex marriage has not existed long enough to generate reliable data regarding its effects,” the brief states.
  • Gay people still have the freedom to marry… members of the opposite sex. “The plaintiffs are as free to marry an opposite sex spouse as anyone else in the State.”
  • Abbott explicitly rejects the notion that marriage is primarily about love and commitment. “The primary purpose of legal marriage in Texas is to generate positive externalities (and avoid negative externalities) for society by encouraging responsible behavior among naturally procreative couples, not to publicly recognize the love and commitment of two people.”
  • Abbott seems to suggest that legalizing same-sex marriage opens the doors to legitimization of other deviant behaviors. “If courts and litigants can create a constitutional right to same-sex marriage by defining it as part of a more general ‘right to marry,’ then any conduct that has been traditionally prohibited can become a constitutional right simply by redefining it at a higher level of abstraction.”
  • Abbott warns the Fifth Circuit away from judicial activism, positing that moderate federal jurists will have trouble being confirmed in the future if same-sex marriage bans are struck down by federal courts. “Indeed, jurists who envision a modest or restrained role for the judiciary in resolving our nation’s disputes—such as Oliver Wendell Holmes, Learned Hand, or Henry Friendly—will likely become un-appointable.”

The crux of Abbott’s case is not all that different from what he put forward in the San Antonio district court. As the San Antonio Express-News put it in a headline yesterday: “Gay marriage ban instituted for kids’ sake.” But that’s not quite precise (which is fine; it’s a headline). If you read the brief closely, it actually has less to do with the well-being of children and child-rearing than it does with procreation. Well, not even procreation per se—more like, the statistical relationship between excluding gay couples from marriage and the increased likelihood of procreation within straight marriage.

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.

Cleopatra de Leon, Nicole Dimetman, Vic Holmes and Mark Phariss
Patrick Michels
From left, plaintiffs Cleopatra De Leon, Nicole Dimetman, Vic Holmes and Mark Phariss outside San Antonio’s federal courthouse in February.

Put another way: Abbott wants to ban gay couples from getting married to encourage straight couples to have children. Abbott cannot argue that marriage is about child-rearing, or the welfare of children, because gay couples are perfectly willing and able to raise children. (Indeed, gay couples raising kids in Texas face all sorts of legal problems because of Texas’ ban on same-sex marriage; the Abbott brief says not a word about this real-world problem for children and their parents, including Cleopatra de Leon and Nicole Dimetman, the plaintiffs in the case.) So he’s stuck saying that the state’s interest in banning same-sex marriage has to do with procreation. But what about lesbian couples who get pregnant via donor insemination or in vitro fertilization? What about straight married couples who choose not to get pregnant, are infertile or get married late in life? In any case, isn’t marriage now (but not always in the past, of course) more about love than it is purely procreation? Those are some of the objections that District Judge Orlando Garcia raised when he found Texas’ ban on same-sex marriage unconstitutional. Before delving into a clinical utilitarian argument, the brief gets a little philosophical—generous, even—on these points.

What is marriage? What is its nature? What are its purposes? Why ought the State to recognize it? People genuinely disagree about the answers to these questions, and it is that disagreement—not a desire to discriminate against anyone or to undermine the institution of marriage—that underlies the same-sex marriage debate.

With that thumb-sucking out of the way, Abbott addresses the obvious defects with the “procreation-focused view of marriage” (his phrasing).

[T]he plaintiffs and the district court are wrong to assert that recognizing infertile or childless opposite-sex marriages fails to advance the State’s interest in encouraging stable environments for procreation. By recognizing and encouraging the lifelong commitment between a man and woman—even when they do not produce offspring—the State encourages others who will procreate to enter into the marriage relationship.

Abbott’s “procreation-focused view” is not new. In the middle part of the last decade, Abbott (unsuccessfully) defended Texas’ ban on sex toys. At the Fifth Circuit, he argued that one of the state’s interests in prohibiting dildos and vibrators was “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.” This sexual prudishness (one hears echoes of Pope Paul VI’s Humane Vitae) crops up in other ways in Abbott’s brief yesterday. Even for those with spouses who can’t conceive, Abbott argues, banning gay marriage will keep you from sleeping around and having kids out of wedlock that the rest of us have to pay for.

By encouraging faithfulness and monogamy between a fertile person and an infertile opposite-sex spouse, these marriages—even though infertile—serve to channel both spouses’ sexuality into a committed relationship rather than toward sexual behavior that, for the fertile spouse at least, may result in costs that are ultimately borne by society.

But, still, how does allowing same-sex couples to marry discourage straight couples from getting married and procreating? Abbott argues that it’s enough for a same-sex marriage ban to pass constitutional muster “if one could rationally believe” that it “might be the case” that opposite-sex marriages are better for society than same-sex marriages. For gay couples who want to get married, Abbott hints at a solution: Find an opposite-sex partner.

All persons in Texas—regardless of sexual orientation—are subject to the same definition of marriage, and the plaintiffs are as free to marry an opposite-sex spouse as anyone else in the State.

I have no idea if Texas will prevail at the Fifth Circuit. The cause of marriage equality has done very well so far at the district court level and just yesterday a three-judge panel for the Fourth Circuit Court of Appeals in Virginia struck down that state’s ban. Ditto for the 10th Circuit Court of Appeals. The Fifth Circuit is the most conservative in the nation, so Abbott has that going for him, and he pulled out all the conservative stops in his legal brief, signaling to the justices that they would be on the right side of tradition, history, judicial restraint, the democratic process and, yes, the kiddos. But you do get the sense from reading Abbott’s brief that the “anti” arguments have become enervated and do little more than paint a fast-fading bigotry with a thin coat of highfalutin legalese.

Forrest Wilder, a native of Wimberley, Texas, is associate editor of the Observer. Forrest specializes in environmental reporting and runs the “Forrest for the Trees” blog. Forrest has appeared on Democracy Now!, The Rachel Maddow Show and numerous NPR stations. His work has been mentioned by The New York Times, the Washington Post, the New Yorker, Time magazine and many other state and national publications. Other than filing voluminous open records requests, Forrest enjoys fishing, kayaking, gardening and beer-league softball. He holds a bachelor's degree in anthropology from the University of Texas at Austin.

  • Crystal

    Forrest, I can’t agree with a lot of what Abbott is saying about government’s role in marriage. However, what would be your basis, if you have one, for denying anyone the right to marry, including polygamist families, consanguineous couples, non-romantic partners or groups–really anyone who wants to enjoy the legal or financial benefits (or burdens) that legally married persons currently enjoy? Seriously curious…

    • Forrest Wilder

      I don’t think there is any rationale—legal, biological, moral—for allowing incest. Moreover, there is not a constituency of aggrieved people, so far as I know, clamoring for such a right. I don’t particularly see the connection between same-sex marriage and incest, but, then, I’m not Rick Santorum.

      Polygamy is tougher because the rationale for marriage equality is, to put it very simply, that the government has no rational basis for treating same-sex couples differently than opposite-sex couples when it comes to marriage. Modern marriage is centered on love between consenting adults, so what’s to stop multiple consenting adults from demanding that the government stop legislating their behavior? The logic seems inexorable. I actually don’t think there is an easy answer to that question.

      However, to me, there are some key differences. Unlike same-sex coupling, polygamy often involves—in the U.S. at least—coercion and subjugation of women, and leaves young (straight) males with fewer romantic and sexual prospects, all of which produces broader societal harms that are unrelated to the same-sex marriage debate. There’s also the complications that come from moving from a union of two to a union of three, four, five, etc: provenance of children, property division in the case of divorce… use your imagination.

      Finally, even if the legal case for same-sex marriage does force the issue of other unorthodox marriage arrangements that, in and of itself, does not weaken the case for same-sex marriage.

      • Crystal

        I agree with your last statement. But other than that, your other points seem a bit presumptuous, judgmental and maybe even provincial. I suggest that there is no acceptable justification to deny equal rights to the groups I mentioned, whether or not you find their private behavior moral. And it seems silly to bring up the questions of biology and legal status in a conversation supporting same sex marriage. The state has as much interest in personal bedroom behavior among consenting adults in polygamous or consanguineous relationships as they do same sex relationships – which is none outside of abuse or some other crime.
        What is the state’s purpose in licensing marriage? Custody and property division do not necessitate it. Courts handle these matters involving unmarried persons all the time. Wills and contracts handle (or could handle) inheritance, insurance, property issues, etc. Again, why are these benefits afforded only to couples in romantic relationships? Should two old spinster sisters not have the same legal benefits that come with a marriage? My point is… why does the government pick winners and losers in the marriage question? Why does the government need to be involved at all?
        Other than to establish a presumption of paternity to protect innocent children–that’s the only necessary role I see for the state to license the marriage of two or more people.

    • flora68

      It’s just John Cornyn’s ridiculous box turtle argument again. There’s really no need to carry things to such absurd extremes.

  • fatibel

    While modern marriage is more about love than it was 200 years ago, the reason for the marriage is really only of concern for he people involved. Why should the state care whether two people are getting married for love or because of a pregnancy or to seal a business merger? The state is concerned with contracts and legal relationships. For practical purposes, the state’s recognition of a marriage is a legal recognition of the relationship between two people, conferring certain rights and privileges with regard to each other. Rationally, from the state’s point of view, all marriages are civil unions – the legal pairing of two people. Whether those two people are the same sex or different sexes shouldn’t matter when it comes time to pay the hospital bill. I would love to see the state get out of the marriage business and stick to licensing civil unions. If you want to get married in your church, that’s between you and your church.
    Which is a long way of saying that Abbott’s arguments are beside the point.
    Signed, one who has been happily married for 17 years and has no children but didn’t try too hard to avoid it.

  • Lenna Webb

    Greg Abbott is going to court again! This time he claims that same-sex
    marriages should be banned because they “do not naturally produce children.…
    That is enough to supply a rational basis for Texas’ marriage laws.” On this
    “rational basis,” my father-in-law, who was a widower at the age of 78, would
    not be able to marry a woman his age because they could not naturally produce
    children.

    My relative, who underwent a hysterectomy at age 30, would be denied a marriage
    license. Any couple seeking a marriage license would have to prove they were
    fertile. If Abbott did not prevent those persons from marrying, would he not be
    denying the same-sex couple equal protection of the law based upon his
    “rational” argument? And since Texas is making it virtually impossible for a
    woman to get an abortion, the number of children put up for adoption would
    increase, while the number of loving homes for these children would decrease.

    This shortsighted thinking is imbecilic, and this man wants to be governor!
    Hopefully, the Texas electorate will make its “rational” choice in November.

    Bob Franklin, Far North Dallas

  • flora68

    Because underpopulation is such a serious problem for the entire world…

  • Mary95

    So you don’t feel that children deserve or even have a right to a mother and a father. More important is your desire than a child. So unfair.

    • Pax Hart

      Really, Mary?
      You’re going to reach for so much hyperbole that two consenting adults being allowed to legally marry is denying little babies of a mommy and daddy?

  • auntiegrav

    Let’s use their misplaced definition against them. The state doesn’t so much have an interest in procreation, but in getting people to care for their future canon fodder (a.k.a. “future citizens”). In other words, we don’t need marriage licenses per se, but a “Family License”, where any two people can receive the benefits of marriage (co-dependent legalities, tax breaks, etc.) if they agree to be responsible for a dependent person (thus saving the state that cost). The dependent may be someone old, young, whatever.
    The Family License simply expires when the dependent is no longer a dependent.
    Divorce would be unnecessary. The Family License could be extended by the couple ohf they want to stay in partnership beyond the dependent’s need for them.
    “Love” marriages then become the purview of religions, but the state’s interest is in raising canon fodder while avoiding dependency on the state.
    All of the talk about “family stability” is really hypocritical because most of the instabilities are caused by the confusing legalities and state-sanctioned corporate enslavement (like income taxes, health insurance and automobile-dependent zoning laws), not by gay people.
    The anti-gay people are afraid they’ll see leather-wrapped people making lots of noise in parades all over the country, but they don’t do anything about the Harley crowd or the diesel truck dimestore cowboys.

  • WUSRPH

    Look familiar:

    Texas Atty. Gen. Greg Abbott’s brief in the same-sex
    marriage case:

    “The primary purpose of legal marriage in Texas is to
    generate positive externalities (and avoid negative externalities) for society
    by encouraging responsible behavior among naturally procreative couples, not to
    publicly recognize the love and commitment of two people.”

    Catechism of the Catholic Church:

    “By its very nature
    the institution of marriage and married love is ordered to the procreation and
    education of the offspring and it is in them that it finds its crowning
    glory.”162 (372)

    Unity,
    indissolubility, and openness to fertility are essential to marriage. Polygamy
    is incompatible with the unity of marriage; divorce separates what God has
    joined together; the refusal of fertility turns married life away from its
    “supreme gift,” the child (GS 50 §1).

    Maybe Abbott can save time and money by just filing a copy
    of the Catechism with the court.

  • Patricia Garvin Fox

    Has anyone else noticed that an analysis of a Greg Abbott legal position will invariably contain the word “stupid.”