Be sure to read Part I
We left our story as the Attorney General had asked the Texas State 5th Court of Appeals to overturn the ruling of Judge Callahan granting a gay couple a divorce. This is where State Rep. Warren Chisum and former State Sen. Todd Staples get involved.
Back in 2005 Chisum authored HJR 6 in the Texas House and Staples carried it in the Senate. HRJ 6 is the Texas version of the “Defense of Marriage Act” and would later be approved by the voters and added to the Texas Constitution in Article 1 Sec 32, so they are very keen to protect their work.
Chisum and Abbott have filed an 43 page document, known as an amicus brief, with the 5th Court of Appeals arguing that the divorce decree should be overturned (Chisum isn’t a fan of divorce in general, in 2007 he tried to increase the waiting period for a divorce).
The Chisum/Staples brief is an interesting read (although they spend about 10 pages calling Judge Callahan names). The crux of their argument comes down to exactly how the 14th amendment to the U.S. Constitution should be applied to GLB folk.
The 14th amendment was passed after the civil war in an attempt to remove some of the systemic prejudices built into the U.S. government against African Americans. Section one of the amendment states:
“…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
But how to interpret the idea of “equal protection of the laws”? Are there situations where government has a compelling interest in limiting the rights of some people because of innate characteristics? For instance, children are prevented from driving, voting and buying certain products; the blind are prevented from driving; the severely mentally handicapped aren’t allowed to vote. These are all cases where there is a rational basis for the law to be unequally applied to citizens.
To address this conflict the Supreme Court, starting in 1944 with Korematsu v. United States, created a system for analyzing claims under the equal protection clause of the 14th amendment. It developed into a three tier system that places different levels of scrutiny on discriminatory laws based on the population that is affected. The greater the scrutiny the more evidence the state must present that the discriminatory law is necessary for the public good
The levels are:
Strict scrutiny requires that the State has a VERY, VERY good reason for putting the law in place. Generally discriminatory laws cannot pass strict scrutiny unless they are very narrowly tailored, are temporary and are dealing with issues of national security or affirmative action (for instance a law which, for a set period of time, gives preference to ethnic minorities in college admissions would pass strict scrutiny).
Intermediate scrutiny is applied when the law is designed to address real differences between populations, such as issues of physical strength.
Rational basis scrutiny is applied to all other claims of discrimination under the 14th amendment. In order for a law to pass rational basis scrutiny the state has to have a reason for the law, but the law can be broad and far reaching.
The Supreme Court has not strictly defined which groups receive which level of scrutiny but generally issues of race, religion and national origin are covered under strict scrutiny, sexual discrimination under intermediate scrutiny and everything else under rational basis.
The Chisum/Staples brief argues that Judge Callahan applied strict scrutiny to the Divorce Case instead of rational basis. In other words she said that the state didn’t have a VERY VERY good reason for banning same-sex marriage, but only a sort of broad and general reason, and that wasn’t good enough.
To back up their claim of misapplied scrutiny Chisum and Staples cite Baker v. Nelson, a 1972 Supreme Court Case that is the federal precedent on same-sex marriage cases. Baker and his boyfriend had applied for a marriage license in Minnesota; they were denied and sued that state, citing, among other things, the 14th amendment guarantee of equal protection, the state denied their claim.
They eventually appealed to the U.S. Supreme Court which issued a one sentence ruling that the court did not have jurisdiction to intervene in a state marriage issue. This set a narrow precedent in federal courts that sexual orientation does not receive strict scrutiny in questions of marriage.
In addition, in overturning Texas’s sodomy laws in Lawrence v. Texas, the court was very careful to clearly say that they were overturning the law based on rational basis scrutiny NOT strict scrutiny. So the Supreme Court has jealously preserved the application of rational basis scrutiny to any equal protection claims under the 14th amendment based on sexual orientation.
But in order to pass even rational basis scrutiny the state would still have to have a reason for the discriminatory law. What reason do Chisum and Staples give in their brief? Why to protect the children of course! The brief argues that statistically children raised in households with same-sex parents do only as well as children raised by single parents, but not as well as children raised by straight couples.
([climbing on soap box] First off, I hope that anyone reading this who was raised by a single parent, or is a single parent is appropriately offended. Second, I would like to remind everyone that 2 of the last 3 presidents of the United States were raised by single parents, so clearly it’s not impossible to raise successful children under such circumstances. Thirdly, is marriage really about children? ‘Cause if so I know a bunch of childless straight couples out there who will be shocked [climbing off soap box])
Chisum and Staples also argue that Texas Law allows for the marriage to be voided, a legal maneuver usually reserved for cases of bigamy and incest, which would allow for legal protections such as division of common property and name changes. Therefore, since there is a separate legal maneuver that would create an equal result, there is no need to go into all this nasty “equal protection” nonsense.
It’s a very tidy legal argument, and one that has been made before with great success. Find out why I think it’s wrong in Part III…
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