By Chris Hoenig
Dozens of Texas lawmakers believe that overturning the state’s ban on same-gender marriage will lead to the legalization of incest, pedophilia and polygamy, and are using that argument to try to convince a federal appeals court to reinstate the ban.
In an amicus brief filed with the 5th U.S. Circuit Court of Appeals, 63 members of the Texas legislature claimed that a federal court overstepped its bounds in ruling the state’s same-gender-marriage ban unconstitutional.
“The district court broadened the definition of the ‘existing right to marry’ as one that includes the right of people to ‘select the partners of their choosing’ for marriage, without regard to sex,” the brief—officially filed by the Texas Conservative Coalition, a caucus of state legislators—reads. “If the right to select ‘partners of their choosing’ is the criterion used to invoke marriage as a fundamental right, then marriage restrictions on age, polygamy and consanguinity are also ripe for challenge.”
An amicus brief is a legal testimony filed by a party with a strong interest in a case, but not directly involved (amicus curiae literally translates to “friend of the court”). The lawmakers filed in support of Attorney General Greg Abbott—also the GOP gubernatorial nominee—who is leading the state’s appeal to reinstate the ban.
Anti-gay-marriage advocates are returning to many of the same arguments they made in the original lawsuit. But the federal court ruled that the legalization of “morally reprehensible actions” like pedophilia was not a “logical next step” to the legalization of same-gender marriage, and that the ban violated the equal-protection clause of the Constitution.
“Another ground cited by supporters of Texas’s marriage laws and subsequently dismissed by the district court is that recognition of same-sex marriage ‘could lead to the recognition of bigamy, incest, pedophilia, and group marriage,’” the amicus brief continued. “As already discussed in this brief, restrictions on marriage relating to these moral considerations remain valid. Thus, the goal of actively trying to prevent those practices from becoming valid is entirely rational public policy.”
In his appeal, Abbott attempts to portray marriage as a biological partnership. “Texas’s marriage laws are rooted in a basic reality of human life: procreation requires a male and a female,” he wrote. “Two people of the same sex cannot, by themselves, procreate.”
He goes on to argue that the federal court misapplied the law when it used Abbott’s own argument against him by noting that the state allows infertile couples and post-menopausal women to marry, and questioned the role of the court. “Rational-basis review does not allow courts to invalidate a law by weighing evidence or resolving disputed questions of fact,” he wrote.
Both Abbott and the 63 lawmakers also attempt to question the socioeconomic and psychological impacts of same-gender marriage.
Abbott argues that banning same-gender marriage will “minimize the societal costs that can result from procreation outside of stable, lasting marriages” and that “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”—despite studies showing that the average divorce rate in states with legal same-gender marriage is 20 percent lower than states that ban it.
The coalition, meanwhile, said that limiting marriage to one man and one woman “gives women and children the surest protection against poverty and abuse,” and “provides for healthy psychological development of children.”
But it also cites widely debunked research by Mark Regnerus about the quality of life for children of same-gender couples. “There is a wide range of literature supporting this view, particularly with regard to child development, making it plausible and, thus, rational for legislators to believe,” the brief said.
Regnerus’ research has been slammed by colleagues who say his research is flawed. An independent audit found that his reports should never have been published, while a Michigan court found his testimony “entirely unbelievable and not worthy of serious consideration” and that his research was “hastily concocted at the behest of a third-party funder” seeking skewed results. Same-gender-marriage opponents in Utah have dropped his research from their legal briefs.