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On Greg Abbott and who gets to get married

As you may have heard, Peggy Fikac got to ask Greg Abbott the obvious question about how exactly the state’s law against same-sex marriage, which Abbott is diligently defending in court, differs from the old laws that once banned interracial marriage, and would he have defended those as well since he claims he’s just doing his job as the state’s lawyer.

RedEquality

It didn’t take Texas Attorney General Greg Abbott any time at all to decide that not answering that question was the best course during a meeting with the San Antonio Express-News Editorial Board.

“Right now, if there was a ban on interracial marriage, that’s already been ruled unconstitutional,” Abbott pointed out. “And all I can do is deal with the issues that are before me … The job of an attorney general is to represent and defend in court the laws of their client, which is the state Legislature, unless and until a court strikes it down.”

When I said I wasn’t clear if he was saying he would have defended a ban on interracial marriage, he said, “Actually, the reason why you’re uncertain about it is because I didn’t answer the question. And I can’t go back and answer some hypothetical question like that.”

Asked about the similarities some see between the ban on gay marriage and past prohibitions on interracial marriage, Abbott said, “Well, the Supreme Court has disagreed with that” by holding that sexual orientation isn’t due protected-class status in the way that race is.

[…]

“What kind of state would we live in if the public policies of this state were allowed to be determined by the attorney general? The attorney general would have a super veto over the elected representatives, and that would be a chaotic form of government, contrary to our fundamental constitutional principles,” he said. “It would be way beyond the separation of powers. It would be a dictatorship… by the attorney general.

“Believe me, I would love it,” he added, “The state would look a whole lot more like me right now if I did abandon my role and exercised my magic wand and decided what cases I would defend and which I didn’t, and therefore allowed me to dictate policy in this state.

“But I think that by doing what I do, I am maintaining the policy that I think is appropriate, and that is for each elected official to fulfill their constitutional obligations,” he said.

Not surprisingly, this broke the Internet as people around the globe reacted with gasps, guffaws, facepalms, and sputtering outrage. The Wendy Davis campaign was swift to jump all over this. One reason for the outpouring was the basic fact that Abbott’s answer was, in a word, a crock. The DMN points out one problem with it:

Other attorneys general, citing their oath of office to uphold the Constitution, have refused to defend certain policies, laws and judgments.

John Cornyn, now a Republican U.S. senator, as attorney general voluntarily dropped an appeal of a death penalty case and sought a new punishment hearing. He determined he could not defend the punishment meted out to a black defendant after the state presented an expert witness who had testified that blacks are more inclined to violence.

Former Attorney General Jim Mattox, a Democrat, refused to defend a state law that criminalized homosexual conduct. He dropped the appeal of that law.

In other words, previous attorneys general have felt free to follow their conscience when they thought that the situation merited it. The Observer cites an example of Abbott’s folly by sticking to his mantra.

But while the Attorney General may have to mount some kind of defense of the state, he has “a tremendous amount of discretion” over how aggressively to prosecute those cases, how “effectively” to prosecute cases, and which cases to bring to court. Abbott has been using his stint as AG to campaign for governor for years—he’s brought failed case after failed case against the federal government, costing Texas taxpayers millions. But his hands are tied when it comes to gay marriage and school finance, he insists. He has to aggressively defend bad laws to the last.

Abbott’s tenure has included a number of instances in which he pursued comically bizarre legal arguments in cases for which he could have no reasonable hope of victory—seemingly forfeiting his powers of discretion. In 2008, Abbott chose to defend the state’s ban on the sale of sex toys, a case that emerged from the fallout of Lawrence v. Texas. Over the years, Abbott has deployed novel legal arguments against gay marriage. But this wasn’t a case about gay marriage, a subject that still animates sincere moral disagreements. This was a case about every American’s god-given right to buy dildos.

At the time, anti-sex toy laws were widely understood to be unconstitutional, but Abbott suited up for battle. The state, his lieutenants argued with straight faces before the 5th Circuit, had an interest in “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.” The state of Texas has a pressing interest, Abbott said, in discouraging you from masturbating or blowing your boyfriend. That was just six years ago.

By the way, the law that criminalized gay sex, which was the basis of the Lawrence v. Texas case, is still on the books in Texas, as our Republican-dominated Legislature has not seen fit to repeal it. If the Legislature instead decided to amend that law by offering reparative therapy as an alternate sentencing option for defendants – an action that would clearly be unconstitutional on its face but would nevertheless represent the will of his client – would he feel compelled to defend that?

I know, I know, that’s another hypothetical, and Greg Abbott doesn’t do hypotheticals. So let me ask this instead: Can Greg Abbott name one instance in his time as Attorney General when he had to defend a law or regulation that he didn’t support or approve of? Putting aside the obvious discretion he has used in deciding what lawsuits to file and what defendants to file them against, can he cite an example of a law he didn’t like but had to defend? I kind of suspect the answer to that is “no”. Maybe that’s not fair to him – maybe the opportunity just never arose – but regardless, it would put his “just doing my job” claim into some perspective. It’s a lot easier to just do your job when your job involves doing things you like and want to do. It’s a little different when you do something with the same vigor and diligence for a cause you wouldn’t have chosen to support but are compelled to because it’s your job. BOR and Lone Star Q have more.

Senate rejects Shanda Perkins

The nomination of Shanda Perkins, the unqualified anti-sex toy activist best known for her war on dildos, for the State Board of Pardons and Paroles, was rejected today by the Senate.

After a brief debate, the GOP-controlled Senate by a 27-4 vote sent the nominee of fellow Republican Perry back to the Nominations Committee, where it is expected to die.

While Perkins’ lack of qualifications were cited as a reason for the surprise move, several senators said Perkins’ involvement in a 2004 controversy over the sale of sex toys in her hometown of Burleson was a factor.

Just last week Perkins had been approved by the Nominations Committee, with a single dissenting vote.

Wednesday’s public vote against a gubernatorial nominee is a rarity, something several senators said had not occurred in years. In most cases when senators want to derail a nomination, they block it so it never gets out of the committee.

[…]

At her Senate confirmation hearing last week, Perkins denied she had anything much to do with it.

Sen. John Whitmire, D-Houston, argued that Perkins was simply unqualified for the $95,000-a-year, full-time post.

“This is not a partisan issue. This is not a personal issue … This is a life-and-death position. It demands qualifications.,” Whitmire said.

Three other nominees to the parole board that were confirmed by the Senate are highly qualified, Whitmire said. Two are longtime board members who are being reappointed, and the other is a Huntsville attorney.

“They have multiple degrees … (Perkins) has no college degree,” he said, noting that Perkins has no criminal justice experience, other than working for a time as a prison ministry volunteer.

Sen. John Carona, R-Dallas, agreed. “The basis question is: Are there more qualified people out there?” he said.

As for the lingering issues, Whitmire said he was opposed to the nomination based solely on Perkins’ lack of qualifications. “There are others that could be raised. I wish not to go there,” he said.

After 10 minutes of debate, senators returned to their chairs and quietly voted down Perkins, in a chamber that is usually noisy with conversations.

Good for them. While I think a Governor – or a President – should have a lot of latitude in making nominations like this, some minimum standard needs to be met. The Senate has a constitutional role to advise and consent, and when they’re presented with a stinker like this, it’s perfectly proper for them to send it back. It clearly wasn’t a close call in this case; one wonders why they bothered to let the nomination out of committee. Be that as it may, this was the right thing to do. Thanks to Grits for the catch.

Can’t wait to see the transcript of this one

Speaking of appointments, the Senate Nominations Committee today will consider Governor Perry’s naming of Shanda Gillaspie (Perkins) to the Board of Pardons and Parole. You remember her – she’s the anti-sex toy activist best known for her war on dildos. I’m going to resist the urge to make any bad puns and just note that as Grits says, she’s unqualified for the post. But she does serve a political purpose, and sometimes that’s all that’s needed.

Why does Governor Perry hate sex toys?

From Scott Henson:

Normally, the Texas Senate rubber stamps the Governor’s appointments to the Board of Pardons and Paroles, but one of Rick Perry’s three appointees announced last week perhaps deserves closer vetting by the Senate. According to the Governor’s press release:

Shanda G. Perkins of Burleson is a retired banking executive. She is a member of the United Way of Johnson County Board of Directors and Burleson Lions Club. She is also director of the Johnson County Chamber Summit, and is a member and past ambassador of the Burleson Chamber of Commerce. She also volunteered as a youth pastor, counselor and Sunday school teacher at Lighthouse Church. Perkins replaces Jose Aliseda of Beeville.

That doesn’t explain, though, why she’s being appointed to this slot. As far as I can tell, Mrs. Perkins’ sole experience in the criminal justice realm stems from a personal morality crusade against the sale of sex toys in Johnson County that led to the 5th Circuit Court of Appeals overturning Texas’ law on the subject.

She’s so tough on crime, in other words, she’s tough on crimes the federal courts say cannot exist because they’re acts protected by the First Amendment. But Governor Rick Perry thinks she’ll make fair decisions on the parole board?

Now that’s what I call being tuff on crime. And I just wanted to point out that I blogged about this two other times besides the link Scott used. Because as I said before, what’s the point of having a blog if you can’t use material like this? If you really want to know more about this – and of course you do – I recommend this Dallas Observer story from 2004, which gives rise (sorry) to the term “dildo runner”. Never have I meant the words “check it out” more than I do right now.