In his brief filed Monday with the 5th Circuit Court of Appeals in the Texas marriage case, Attorney General Greg Abbott used the Equal Protection Clause to argue for discrimination.
Earlier this year, a U.S. District court in San Antonio threw out the Texas marriage amendment on the basis of due process and equal protection guaranteed in the U.S. and Texas constitutions.
“This does not require a state to confer equal treatment on things that are truly different from one another in relevant respects, and the district court did not deny that opposite-sex unions are the only type of human relationship that is biologically capable of producing children,” Abbott wrote.
In other words, equal protection protects Abbott’s right to discriminate. Special rights should only be given to couples seen as capable of reproducing and not to those couples adopting the kids whose reproducing parents aren’t taking care of them.
He dismissed the idea that opposite-sex couples may marry who may not have children by saying rational basis “allows states to enact over-inclusive or under-inclusive laws” and that “rational-basis review does not require a state to produce evidence that a law will achieve its objectives.”
So Texas’ argument to defend discrimination is that that state may discriminate because gay and straight are different and if the argument for straight marriage is procreation, Texas can make laws favoring procreation even if they don’t work.
Abbott dismisses calling gays and lesbians a “suspect class” that should be protected because “The political influence of the gay-rights movement has only grown since the time of the many court decisions rejecting suspect-class status.”
In other words, rather than protecting everyone’s rights equally, it’s OK to discriminate against gays and lesbians now because we’re actually politically stronger than we used to be.
Abbott also dismisses due process — the entire concept.
“There is also no stopping point to this abstraction maneuver. 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 — perhaps as part of a ‘right to be let alone’ or a ‘freedom not to conform,’” he wrote.
Abbott’s brief is a rehash of arguments put forth in 20 other cases that other states have lost and the conservative Fifth Circuit is just likely to buy it. He even quotes from Bowers v. Hardwick in his brief. That case was overturned by Lawrence v. Texas. He might as well have quoted from the Dred Scott decision.