Texas AG Greg Abbott: Judge in Prop 8 case ‘failed to do what a judge is supposed to do’

A few weeks back we wrote about how anti-gay leaders in Texas were deafeningly silent about U.S. District Judge Vaughn Walker’s landmark decision declaring Proposition 8 unconstitutional. As we said at the time, this case has the potential to void gay marriage bans in all states including Texas that have passed them, so one might expect the folks who pushed through the 2005 state constitutional amendment to chime in. Our post was later picked up by Rachel Maddow. Anyhow, looks like Texas Attorney General Greg Abbott, who’s been fighting gay divorce tooth and nail, has finally said something about Walker’s ruling, in an interview last week with the Texas Tribune (which has seemingly become the only mainstream media outlet in the state that even pretends to care about LGBT issues). Below is a transcript of the full exchange between Abbott and the Tribune’s Evan Smith, taken directly from the first three minutes of the video. Smith asks legitimate questions but fails to follow them up and seems to let Abbott off the hook pretty darn easily. For example, Smith allows Abbott’s assertion that Baker v. Nelson is binding precedent — which is pretty far-fetched at this point — to go unchallenged. Likewise, Abbott fails to respond substantively about Ken Mehlman’s coming out or the issue of transgender marriage. Again, kudos to the Tribune for bringing up these topics, but ultimately that’s not enough — they need to do their homework and be prepared to hold people’s feet to the fire.

Smith: I want to start with a bit of news that broke yesterday afternoon, and that is about Ken Mehlman. Ken Mehlman is the former chair of the Republican National Committee. He was George W. Bush’s campaign manager in ’04, a close aide to George W. Bush over the years politically, who I think as you know announced yesterday that he’s gay, and that he intended to use that public position to campaign for gay marriage? What do you think about that?
Abbott: What do I think about Ken Mehlman?

Smith: What do you think about the Mehlman announcement and what do you think the larger significance of the Mehlman announcement is if there is any for the discourse about gay marriage in this county?
Abbott: Well it adds further discourse into the whole issue, but it doesn’t change the legal dynamics. What one person feels doesn’t change the law, doesn’t change the constitution, doesn’t change pre-existing Supreme Court precedent on the issue.

Smith: So there’s a legal issue that you addressed. Mehlman’s announcement doesn’t change that. But there’s also a political dynamic, surely you would agree, at work here?
Abbott: Well, there is a political dynamic. There’s a political dynamic that’s been in play for decades. But once again, the political dynamic is not going to rewrite the constitution. The constitution says what it says, and just because one person comes out and says, “Listen, I’m gay, I believe in same-sex marriage, doesn’t change the constitution.

Smith: And nor does necessarily the actions of a judge in California, as one did recently, holding the door open to the overturning of the proposition in California That as well is one judge’s decision and does not overall affect the issue?
Abbott: It doesn’t impact the issue. If you want to delve into the details, the reality is that that judge failed to do what a judge is supposed to do. Lower court judges are supposed to follow higher-court precedents. There is a precedent from the United States Supreme Court on this issue, in Baker v. Nelson, that is binding precedent on the lower courts unless and until the Supreme Court changes that opinion, and that binding opinion is one that doesn’t recognize same-sex marriages.

Smith: You had the opportunity recently in a case here in Texas involving a transgender individual to offer an attorney general’s opinion. This is a case where people say it may be kind of a small crack in the door, where gay marriage is actually in certain instances legal in Texas. Your office was asked to offer an opinion, and you declined to. Can you talk about that?
Abbott: First of all, we had three opportunities to weigh in legally in courts about whether or not gay marriage is legal in the state of Texas. The issue you’re talking about is the transgender issue, and that involved an issue where we got an opinion request from the county attorney in El Paso, and we rejected opining on that opinion because of current pending litigation. Now if I tell the county attorney from El Paso that I will not give them an opinion, Evan, I’m not going to give you an opinion either.

—  John Wright