The Texas Conservative Coalition (TCC), a caucus of 63 state Republican lawmakers, has submitted a brief to the Fifth Circuit Court of Appeals arguing that it should uphold the state’s ban on same-sex marriage. Among their arguments, as Lone Star Q has pointed out, is that same-sex marriage is comparable to incest, pedophilia, and polygamy.
When Judge Orlando Garcia overturned Texas’s ban back in February, he wrote that the “right to marry” includes the right for individuals to “select the partners of their choosing.” Thus, when the Supreme Court ruled in Loving v. Virginia that banning interracial marriage was unconstitutional, they did not create a new right to interracial marriage; they ruled that individuals could not be restricted from marrying on account of their chosen partner. The same is true of same-sex marriage, he wrote. The ban on same-sex marriage “denies homosexuals the ‘existing right to marry,'” which violates due process just as anti-miscegenation laws did.
The TCC argues that this interpretation is a “distortion” of Loving that “problematically opens the definition of marriage to a variety of unions that society has deemed unacceptable and does not include under the umbrella of the fundamental right to marry.” If Garcia’s criterion is used, they wrote, “then marriage restrictions on age, polygamy, and consanguinity [incest] are also ripe for challenge.”
To uphold the ban, the state has to demonstrate that there is a rational reason for the law other than blatantly discriminating against same-sex couples. The TCC argues that preventing a slippery slope that “could lead to the recognition of bigamy, incest, pedophilia, and group marriage” is just such a reason the court should reconsider.
In the following paragraph, however, the coalition counters its own point with this caveat: “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.” In other words, these conservatives acknowledge that there’s nothing to actually suggest any such slippery slope exists, but the mere fact that some people — including them — believe that it does is enough to rationally justify the ban on same-sex marriage.
Along with these comparisons — and the admission that the law was passed intentionally to prevent same-sex couples from marrying — the TCC concludes by arguing that passing the ban actually had nothing to do with same-sex marriage. “While the laws restrict same-sex marriage, they do so not by declaring that homosexuals cannot marry, but by defining marriage as it will be recognized by the State.” They were not enacted to “disparage and injure,” nor out of “animosity against homosexuals,” but “with a desire to elevate the state’s legal recognition of marriage to a level that society has celebrated throughout history.” In fact, they argue, the marriage laws were “enacted with non-discriminatory intentions,” with a desire to hold up “marriage” (which by their definition does not include same-sex couples) as “higher than other relationships,” not to “exclude anyone from it.”