In his reply brief to the U.S. Court of Appeals for the Fifth Circuit, Texas Attorney General Greg Abbott argues that Texas' ban on same-sex marriage should be reinstated because, essentially, it has a rational basis and should not be subjected to any higher standard of review.
I'm not going to go through the brief line-by-line and I'm not going to go through all of the reasons why Abbott is wrong, viz., why banning same-sex marriage has no rational basis; court after court has done that already. I've written about this before as well.
Abbott's brief actually does get one thing right, and a very important thing at that: "[I]t does not matter ... whether same-sex marriage will produce societal benefits." (Br. at 10.) That's right, it doesn't; people claiming or demanding civil rights do not have to demonstrate that their having or exercising those rights will benefit society in any way. The burden is on the state to justify denying those rights to those people. Abbott is also correct in that the state does not have to show that allowing those people to have or exercise those rights would be harmful. (See Br. at 2.) All that's required is a rational belief that denying those rights to those people will serve some state interest, whether it actually does or not.
What Abbott (and whoever else wrote this brief) gets wrong is not so much the assertion that it is rational to believe that banning same-sex marriage will serve some legitimate state interest. We know it isn't, they know it is, so there's no use disputing that here.
No; what Abbott gets wrong is to completely and deliberately misframe the issue by making the subject of the state's purported interest "opposite-sex marriages," instead of exclusivity, viz., "maintaining the exclusivity of opposite-sex marriages." He makes the same deliberate error that those who try to couch their opposition to equality as "support for traditional marriage" make, which is to leave out the critical words describing what they actually "support," to the extent they actually "support" anything, which is "maintaining the exclusivity of [so-called] traditional marriage."
The brief does this over and over again:
"So long as one could rationally speculate that opposite-sex marriages advance some state interest to a greater extent than same-sex marriages, then Texas's marriage laws survive rationality review." (Br. at 2-3 (emphasis in original).)
"[I]t is rational to believe that opposite-sex marriages will generate new offspring to a greater extent than same-sex marriages will." (Br. at 5.)
"[O]ne could rationally believe that opposite-sex marriages will do more to advance the State's interest in reducing unplanned out-of-wedlock births than same-sex marriage will." (Br. at 7.)
Rational-basis review "requires only that the distinction between same-sex and opposite-sex couples be rationally related to a legitimate government interest." (Br. at 11 (emphasis in original).)
"[T]he state need not show that same-sex marriage will harm a state interest, only that it will not advance some state interest to the same extent as opposite-sex marriage." (Br. at 12 (emphasis added).)
"The court's role, on rational-basis review, is limited to determining whether the distinction between same-sex and opposite-sex couples is rationally related to some state interest." (Br. at 12-13.)
What Abbott is doing here is what many other exclusivists (as I call them) do: arguing for the benefits and virtues of
marriage (or, more specifically, "opposite-sex marriage") in an attempt to argue for the benefits and virtues of
exclusivity -- and failing, because one does not translate to or follow from the other. While it may be rational to believe that "opposite-sex marriages" will have certain effects, accomplish certain goals and serve certain interests, it is
not rational to believe that
maintaining the exclusivity of opposite-sex marriage will do the same.
Just replace the misframing language with the correct terms, and the misdirection becomes obvious:
"So long as one could rationally speculate that maintaining the exclusivity of opposite-sex marriages advances some state interest to a greater extent than permitting and including same-sex marriages would, then Texas's marriage laws survive rationality review."
"[I]t is rational to believe that maintaining the exclusivity of opposite-sex marriages will generate new offspring to a greater extent than permitting and including same-sex marriages will."
"[O]ne could rationally believe that maintaining exclusivity will do more to advance the State's interest in reducing unplanned out-of-wedlock births than allowing equality will."
Rational-basis review "requires only that maintaining exclusivity of opposite-sex marriage by excluding same-sex couples from that institution be rationally related to a legitimate government interest."
"[T]he state need not show that allowing equality will harm a state interest, only that it will not advance some state interest to the same extent as maintaining exclusivity."
"The court's role, on rational-basis review, is limited to determining whether excluding same-sex couples from marriage is rationally related to some state interest."
The difference between these formulations and those set forth in Abbott's brief are profound, and should be determinative. Abbott and others are deliberately misleading the courts, the public, and themselves about what they're
really trying to do. Court after court has seen through this, although no court has put it precisely this way:
The state's purported interest is not in marriage, or in "opposite-sex marriages"; it's in exclusivity. The state is not being called upon to justify "opposite-sex marriages"; it is being called upon to justify
exclusivity. This purported "rational basis" for "opposite-sex marriages" is irrelevant, and a wasted exercise. What is required here is a rational basis for
exclusivity, and as court after court has determined, there simply is none.