OUT AND ABOUT: Language in amendment bans straight marriage

Is marriage legal in Texas?  

According to Houston lawyer and Democratic Texas attorney general candidate Barbara Radnofsky, it is not.

In 2005, an overwhelming majority of the Texas Legislature approved an amendment to the Texas Constitution.

The amendment reads: 

“The constitutional amendment providing that marriage in this state consists only of the union of one man and one woman and prohibiting this state or a political subdivision of this state from creating or recognizing any legal status identical or similar to marriage.”

The trouble here is the second half of the amendment starting with “and prohibiting the state.” Technically speaking, the “and” creates two separate points which causes the amendment to define marriage as between a man and a woman, but also to prohibit all marriages simultaneously.

According to Texas Attorney General Greg Abbott, the second half was designed to be broad to prevent civil unions between lesbian, gay, bisexual and transgender citizens, but due to poor phrasing, the amendment has effectively outlawed marriage in the state.

While Abbott’s intentions are obvious in context, legal documents are not read based upon the intentions of their authors.

Radnofsky said the wording was a “massive mistake” in a Fort Worth Star-Telegram article. Even students found trouble with the wording.

“The way it’s written, no one can get married. I don’t know how someone could miss it; it jumps out at you,” political science major Mike Krupp said.

Some students think that the law might not change.

“Any marriage ban is unconstitutional, gay or straight, but the Supreme Court won’t touch it because it’s too volatile,” pre-law student Saira Siddiqi said.

If the state judiciary chooses to enforce the ban, the legal and financial ramifications would be staggering.

 That aside, the marriage ban’s existence has far-reaching implications for the LGBT community.

In the likely event that the law is ignored, it could set a legal precedent that would ensure marriage equality. If the amendment were overturned, it would establish a precedent against limiting marriage.

The only conceivable way that Texans could deny gays and lesbians the right to marry would be to enforce the marriage ban, which would ironically still be a form of marriage equality since no one could marry. 

By allowing the passage of this amendment in its current form, Abbott may actually be one of the most prolific figures for marriage equality in history.  

8 comments

gomme

Wed Dec 2 2009 15:37

"No. The reality is, they have the same rights as anyone else. They are not seen any differently in the eyes of the law. What they want is a special right that will apply only to them."

what? no. really. what? the community is fighting for the right to marry, adopt, not be discriminated against in the workplace because of their orientation. all of these rights are enjoyed by the straight community because they are the ruling class. i seriously don't understand your objection to protecting oppressed minorities except to assume that you are severely out of touch with what it's like to be gay in america.

"There should never be a law that compels anyone to accept another person. There is no provision for that in the constitution."

so are you opposed to the civil rights act of 1964? or the federal government's use of the commerce clause to compel businesses to stop discriminating against black customers and employees? the government had every right to step in and drag those backward states into the 20th century, just as they have the right to drag those same backward states into the 21st century.

and as for the constitution, i don't buy that absurd strict constructionist interpretation of the constitution; it was a product of it's contemporary political culture and mores, which have evolved since the 18th century. if thomas jefferson rose from the dead and made ridiculous legalistic arguments against basic human rights, i would laugh in his bigoted zombie face.

No name given

Sun Nov 29 2009 12:20

**the "agenda" of this shadowy minority is "being recognized as human beings by the state".**

No. The reality is, they have the same rights as anyone else. They are not seen any differently in the eyes of the law. What they want is a special right that will apply only to them. They would probably have a lot more credibility with the public if they would approach it in that manner and stop trying to say that they want "equal" rights.

**i am saying that the law should compel society to accept gay people as being equal to straights.**

There should never be a law that compels anyone to accept another person. There is no provision for that in the constitution. If there was a way to compel someone to accept someone else by way of legislation, the founding fathers would have made sure there was a law to insure we were all Christians in perpetuity.

**sometimes, a vocal minority has to stand up and force a change in the law. i fully advocate and support using any means necessary to achieve these ends. **

So you're okay with hate crimes, as long as they support your cause.

The reality is, in a few generations, the GLBT community will probably be accepted as a normal part of society. It's not going to happen in this generation. Homosexual marriage ammendments are voted in by overwhelming majorities in every state where they are put to a vote of the people. The only places where gay marriage is legal, the law was pushed through without the people's consent.
The homosexual community will have to be a lot smarter about the way that they go about advancing their agenda. You cannot advance an agenda using hate and trying to make an issue where there is none. (see above article)

rick

Fri Nov 27 2009 19:20

the "agenda" of this shadowy minority is "being recognized as human beings by the state". for some reason, this is too much for some people to bear. i am saying that the law should compel society to accept gay people as being equal to straights. sometimes, a vocal minority has to stand up and force a change in the law. i fully advocate and support using any means necessary to achieve these ends.

No name given

Fri Nov 27 2009 14:01

Oh.. and rick.. For the government to "get it right" would be for them to remove ALL laws about marriage since marrige is a religious sacrament and there is supposed to be a separation of church and state. Of course, at that point it would be up to the churches to decide who was allowed to be married. It would also allow individuals and businesses to decide which mariages they would recognize without any fear of litigation.

I'm all for it. :-)

No name given

Fri Nov 27 2009 13:47

I have yet to see any credible news source report on this. The language may have been a little clumsy to the average person, but to the lawmakers and the courts it is quite clear. That is why we will probably not see it changed.

There is a minority out there that want it to be true because it fits their agenda, but the reality is that the law does not prohibit marriage, but rather the creation of a new institution "similar or identical" to marriage.

rick

Fri Nov 27 2009 11:13

"getting it right" would be removing all restrictions on gay marriage and issuing a formal apology to the gay community for over 50 years of abuse by the people who are supposed to serve them. so no, i guess i didn't expect them to do that

Your name

Fri Nov 27 2009 01:04

Did we really expect the government to actually get it right?

rick

Tue Nov 24 2009 00:49

so the bigots in charge of the state government were so fixated on oppressing the GLBT community that they accidentally banned all marriage? and even a first year poli-sci student could see the contradiction in the bill's language?

awesome

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