Going further than commonly relied upon arguments in defense of same-sex marriage bans, more than 60 Republican lawmakers of the Texas Legislature have signed onto a brief arguing that such bans prevent “other morally reprehensible actions” from being recognized — including bigamy, incest, pedophilia and group marriage.
In an amicus brief filed Monday with the 5th Circuit Court of Appeals, 63 members of the Texas Conservative Coalition, a legislative caucus, argued that a federal judge had erred in his decision in February to strike down the Lone Star State’s nine-year-old amendment banning same-sex nuptials. That ruling, the brief stated, “problematically opens the definition of marriage to a variety of unions that society has deemed unacceptable.”
“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 a challenge,” the brief claimed. “The fundamental right to marry has never been understood to be all-encompassing.”
Though the slippery slope argument has been made before, attorneys defending same-sex marriage bans in court tend to focus instead on the right of voters to dictate their own marriage laws, as well as on the benefits children reap by being raised with both a mother and a father.
A lot of research suggests that the important factor in determining child success is a stable home environment, not necessarily one that includes two parents of different genders. In fact, a recent study from the University of Melbourne in Australia found that children of same-sex couples were actually happier and healthier than their peers.
Texas Republican Attorney General Greg Abbott stressed the child-rearing argument in his 42-page appeal to the 5th Circuit, and the Texas Conservative Coalition hit that point in its brief as well. Citing dubious conclusions from sociologist Mark Regnerus, whose testimony failed to uphold Michigan’s same-sex marriage ban earlier this year, the Texas brief argued that opposite-sex marriage “provides for healthy psychological development of children.”
Texas was the first state in the Deep South to see its same-sex marriage ban overturned by a federal judge, and analysts anticipate a tougher fight in the 5th Circuit Court, one of the most conservative in the country. Another loss for marriage equality could come out of the 6th Circuit, where a Republican-dominated panel of judges heard oral arguments Wednesday in marriage equality cases from Kentucky, Michigan, Ohio and Tennessee.
So far, however, no federal judge has ruled against same-sex nuptials since last year’s landmark decision from the Supreme Court to invalidate a key portion of the Defense of Marriage Act (DOMA), a law that prevented married gay and lesbian couples from receiving any kind of spousal benefit from the U.S. government. Nineteen states, plus the District of Columbia, now allow same-sex couples to legally wed.
Emma Margolin
Emma Margolin is a reporter at MSNBC.com.