Abbott urged the Fifth Circuit to carefully consider the “rational basis” standard, which, despite how other courts have interpreted it in same-sex marriage cases, requires an incredibly low standard for scrutiny of a law. As he describes in the brief, “If it is rational to believe that a legislative classification might be related to legitimate state interest, then it does not matter whether the law actually advances that state interest — or any other state interest.” In other words, for purposes of the court, the facts of reality don’t matter so long as “one could rationally speculate that opposite-sex marriages advance some state interestto a greater extent than same-sex marriages.” Appealing to this standard is actually sound legal strategy, but in doing so, Abbott makes the case that it doesn’t even matter whether the law is discriminatory or has consequences for Texas families.
Abbott offers two State interests for the law banning same-sex couples from marrying. The first is that marriage will encourage opposite-sex couples to produce new off-spring, which he argues meets the standard because “it is rational to believe that opposite-sex marriages will generate new offspring to a greater extent than same-sex marriages will.” Secondly, the State is interested in “reducing unplanned out-of-wedlock births.” Because same-sex couples do not accidentally get pregnant, “one could rationally believe that opposite-sex marriages will do more to advance” this interest than same-sex marriage will.
Countering the point that same-sex marriage could benefit the children of same-sex couples, Abbott blatantly admits that for the purposes of defending Texas’ law, that’s irrelevant. “It does not matter under rational-basis review whether same-sex marriage will produce societal benefits,” the brief reads. Instead, all that matters is if opposite-sex marriage does more to reduce unplanned out-of-wedlock births and encourage new offspring.
Abbott goes on to suggest that it also doesn’t matter whether same-sex couples will help by adopting the children who are born out of wedlock, because “it does not change the fact that same-sex marriage fails to advance the State’s interest in reducing unplanned out-of-wedlock births.” Ensuring children are born into married families seems to be a goal related to the welfare of children, but the State is simultaneously arguing that the marriage ban’s consequences for children are not a concern — at least not when it comes to whether the law should be upheld. The federal district judge who ruled against the ban earlier this year contended that it only hurt the children of same-sex couples.
Rational basis review will only succeed if the Court does not apply heightened scrutiny, which would mean determining that the right to marry a person of one’s choice is a “fundamental right,” and/or finding sexual orientation to be a suspect class like race or sex. The second half of the brief is dedicated to challenging both of these notions.
Most notable among the claims against heightened scrutiny is an argument that the law limiting marriage to a man and a woman does not discriminate on the basis of sexual orientation, regardless of whether people with a homosexual orientation are disadvantaged by it. That’s because people who are gay can still marry the opposite sex, and in a footnote, Abbott also points out that one of the plaintiff couples in another case “publicly admitted that they have a heterosexual orientation and plan to marry each other as a statement of solidarity with same-sex couples.” Despite the claim that the law is not about sexual orientation, Abbott interchangeably refers to opposite-sex marriages as “heterosexual marriages” throughout the brief.
The Fifth Circuit is a particular conservative court, and it very well could rule against marriage equality. Regardless of the outcome, Texas has indicated a priority for defending a an imperfect law over doing what’s best for the state’s same-sex couples and their children.
Original Article
Source: thinkprogress.org/
Author: BY ZACK FORD
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