Texas Outlaws All Marriages (But Only Means it About the Gay Ones)
This story notes that the Attorney General’s race in Texas has refueled an issue that had been raised four years ago. When Texas passed its constitutional amendment banning same-sex marriages, a linguist pointed out that — oops! — the voters had inadvertently banned all marriages. Nice job of drafting by the lawyers involved…
Consider the text of the Texas amendment (Art. I, sec. 32):
a) Marriage in this state shall consist only of the union of one man and one woman. (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.
The first and second provisions aren’t related in any way (but for being two parts of the same amendment). Thus, (b) stands on its own footing, and appears to say that Texas bans all marriages: Marriage is a state “identical…to” marriage.
It’s not hard to avoid this result. Compare the language from the Idaho amendment:
A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.
That wasn’t so hard, was it?
It seems the story has come up again not because anyone has challenged the validity of opposite-sex marriages in the state (and I doubt any such challenge would succeed, whatever the language seems to compel), but because the Democratic candidate, Barbara Ann Radnofsky, is trying to make political hay over the ineptitude of the AG whose office drafted this language.
And Radnofsky works on voters’ emotions for her marriage. After twenty-seven years, she gushes, her husband and she “still love each other very much.” But now, she fears, they might not be married! Please. It’s even more fantastic to think that any court would apply the results of such a drafting error retroactively.
Again, same-sex couples are political fodder. This is a creative effort to get one more mile out of the fear of gay marriage. Here’s an exercise that Radnofsky might find useful: For her own marriage, she might try substituting a gay couple of twenty-seven years who have never been able to marry. Their harm isn’t hypothetical, but real, and suffered every day. But instead of changing the law to recognize them, Radnofsky wants to “fix” it to be even clearer that they’re the proper targets of discrimination — not, for goodness’ sake, Radnofsky and her spouse.
Happy Anniversary.
One Response to “Texas Outlaws All Marriages (But Only Means it About the Gay Ones)”
November 23rd, 2009 at 4:50 am
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