Sixty-three Texas state legislators have signed on to a friend-of-the-court brief urging a federal appeals court to uphold the state’s ban on same-sex marriage, and saying that legalizing such unions could open the door to polygamous and incestuous marriages.
The lawmakers, who include the Republican nominees for lieutenant governor and attorney general, are members of a legislative caucus called the Texas Conservative Coalition, reports Lone Star Q. The brief was filed Monday with the U.S. Court of Appeals for the Fifth Circuit, which will hear Texas’s appeal of a February U.S. district court ruling that struck down the state’s constitutional amendment prohibiting same-sex marriage. The ruling is on hold while the appeals process plays out.
The brief argues that being able to marry a partner of the same sex is not a fundamental right under the U.S. Constitution. It also contends that in U.S. v. Windsor, in which the Supreme Court ruled that the federal government must recognize same-sex marriages, the court nonetheless allowed for state regulation of marriage.
It goes on to make the “slippery slope” argument concerning polygamy and incest. “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 states. “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.”
The GOP brief notes that the district court dismissed concerns “that recognition of same-sex marriage ‘could lead to the recognition of bigamy, incest, pedophilia, and group marriage.’ 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.”
“None of this is to say that recognition of pedophilia or other morally reprehensible actions being recognized as valid is actually a logical next step that would follow recognition of same-sex marriages,” the brief continues. “Rather, it supports the fact that legislators and Texas voters enacted Texas’s marriage laws with the intention of supporting marriage arrangements that they believe support valid goals related to those concerns. Thus, the laws are entirely rational and constitutional.”
The signers consist of 52 state representatives and 11 state senators. Among the senators are Dan Patrick, the Republican candidate for lieutenant governor, and Ken Paxton, the party’s nominee for attorney general. The state’s current attorney general, Greg Abbott, who filed the appeal last week, is running for governor.
Several other conservative groups have filed briefs calling for the appeals court to uphold the marriage ban. Representatives of some of those groups held a press conference Tuesday in Austin, which featured a statement from the leader of Texas Values, also making a “slippery slope” argument.
“If the people of Texas are forced by federal judges to redefine and reduce marriage to simply a state contract for ‘love relationships,’ polygamy, throuples, and quartets will soon be seeking legal recognition and essentially destroy any real concept of marriage, to the detriment of society,” said Texas Values president Jonathan Saenz. “We are confident with the wealth of information being provided to the Fifth Circuit Court of Appeals, that marriage will be preserved.”
Besides Texas Values, groups filing briefs in support of the ban include Liberty Counsel, the Center for Preservation of American Ideals, Texas Eagle Forum, and Concerned Women for America, plus a variety of religious bodies, such as the U.S. Conference of Catholic Bishops, the National Association of Evangelicals, the Church of Jesus Christ of Latter-day Saints, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and the Lutheran Church-Missouri Synod. Individuals who have submitted such briefs include University of Texas professor Mark Regnerus, author of a much-criticized study on gay parents.
If the Fifth Circuit Court of Appeals does rule in favor of the conservative advocates defending existing Texas law, it will be the first time since the U.S. Supreme Court's landmark decision in Windsor last summer that any court has determined such laws pass constitutional muster. In a clean sweep of victories for same-sex couples seeking the right to marry, 29 consecutive federal and state courts have declared that laws excluding same-sex couples from the institution of marriage violate the U.S. Constitution's promises of equal protection and due process.