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November 19, 2009

Did Texas Ban Marriage?

Well, yes, but no, no, no.

In 2005, Texans amended their constitution to define marriage as between a man and a woman. The trouble, which is being stirred up by Houston lawyer and Democratic candidate for attorney general, Barbara Ann Radnofsky, is the second part of the amendment:

"This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."

Obviously this was intended to prevent the legislature or the courts from establishing domestic partnerships or civil unions. But the plain text of the amendment says that the state may not create or recognize legal statuses like marriage.

So, yes, Texas banned marriage. At least on a purely textual reading of the amendment. Fortunately, I doubt even the most conservative judge would fail to read the second part of the amendment in light of the first part, which clearly set out to make marriage available in Texas under the limitation that it be between a man and a woman. (Although, now Texans can sweat over whether any liberal judges will temporarily adopt a strictly textualist jurisprudence to cause trouble.)

This doesn't seem to be stopping any marriages, anyway. Which means somebody's probably going to sue. Texas could have avoided the issue by including an extra word in the second part of the amendment: "This state or a political subdivision of this state may not create or recognize any other legal status identical or similar to marriage."

Thanks to J. Joyner.


People in comments seem to think it's mere "lawyering" to believe that if Texas had defined something in subpart A of the amendment that it could not have then banned it in subpart B. Except, of course, that's how laws get written all the time.

For example, the criminal law is filled with that type of thing. "Statutory rape is defined as X." "Statutory rape is a felony punishable by Y." Regulatory law is also fileld with that type of thing. "Controlled substance is defined as A." "No wholesaler, manufacturer, or retailer shall furnish controlled substances unless B (usually having to do with state licensing)."

When the legislature defines something it does not necessarily follow that it intends to approve that thing. Now, you and I know that Texas very much wanted to approve the traditional notion of marriage with its 2005 amendment and ban gay alternatives. The text of that amendment, though, followed a familiar pattern:

(A) Definition: Marriage is between a man and a woman.
(B) Proscription: The state shall not recognize legal statuses identical to marriage.

Commenters are reading an implicit "other" in subpart B ("The state shall not recognize other legal statuses"), because they know the intent of the amendment. The point of my original post is that the text alone does not get you there.

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posted by Gabriel Malor at 09:30 AM

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