by Chuck Lindell
In their effort to preserve Texas’ ban on same-sex marriage, state lawyers have repeatedly argued that the restriction doesn’t single out homosexuals for different treatment.
Like every other Texan, the argument goes, gays and lesbians are free to marry — as long as their betrothed is a member of the opposite sex — and therefore the ban on same-sex marriage doesn’t violate the U.S. Constitution’s guarantee of equal protection under the law.
It is a line of reasoning, articulated most recently in Monday’s brief to a federal appeals court, that nettles gay-rights activists.
“That is insulting. It’s a word game; it’s not an argument,” said Neel Lane, a lawyer for two same-sex couples who have challenged the state ban in court.
“My clients are not free to marry the person they love and the person they choose to spend their lives with,” he said. “Freedom which doesn’t secure you the rights that other people have is not freedom. I can’t imagine that anyone would be persuaded by that.”
For state Attorney General Greg Abbott — who is the Republican candidate for governor — and his staff, the argument has been expressed two ways:
Marriage has historically meant the union of one man and one woman, Abbott said in a December legal brief.
Despite recent attempts to redefine the concept, “the right to marry has never included the right to same-sex marriage,” the brief said. “The right that does exist — to marry a person of the opposite sex — is equally available to all people.”
Texas marriage laws don’t target gay citizens, Abbott said in a brief filed Monday with the 5th U.S. Circuit Court of Appeals.
“All persons in Texas — regardless of their sexual orientation — are ineligible to marry a same-sex spouse. A law that applies equally to everyone does not discriminate or deny ’equal protection’ simply because some group of people wants to violate it,” the brief said.
During a February hearing before U.S. District Judge Orlando Garcia in San Antonio, Mike Murphy, an assistant solicitor general in Abbott’s office, argued that “Texas’ marriage law does not violate plaintiffs’ fundamental right to marry.”
Fundamental rights, Murphy said, must be deeply rooted in American history and tradition, while same-sex marriage — first approved by Massachusetts in 2004 — “is a more recent innovation than Facebook.”
After following Murphy to the podium, Lane told the judge that he took exception to the claim that Texas doesn’t violate his clients’ right to marry.
“Saying someone is free to marry in this context is of course a little perverse,” Lane said. “It’s like holding someone’s head under water and saying, ‘You’re free to breathe, you’re just not free to breathe air.’ Denying a person the right to marry the person they love is tantamount to denying them the right to marry.”
Abbott’s office declined to discuss the argument, saying the agency’s legal briefs articulate all the reasons why the Texas ban is constitutional.
In his February order voiding the state’s ban on allowing and recognizing same-sex marriages, Garcia didn’t directly address the state’s argument that all Texans are treated equally.
He did, however, reject the underlying claim that same-sex couples don’t have a fundamental right to marry.
“This court finds that Texas cannot define marriage in a way that denies its citizens the ’freedom of personal choice’ in deciding whom to marry, nor may it deny the ’same status and dignity’ to each citizen’s decision,” Garcia wrote, pulling quotes from last year’s U.S. Supreme Court decision that invalidated most of the federal Defense of Marriage Act.
“By denying (gay couples) the fundamental right to marry, Texas denies their relationship the same status and dignity afforded to citizens who are permitted to marry. It also denies them the legal, social and financial benefits of marriage that opposite-sex couples enjoy,” he said.
Texas’ appeal of that ruling is in the early stages at the 5th U.S. Circuit Court, which has authority over Texas, Louisiana and Mississippi. The issue will ultimately be decided by the U.S. Supreme Court, legal experts believe.