Sponsored Content
Top Headline Comments 11-19-09 | Main | Lindsay Graham (Yeah, I Know) Destroys AG Eric "Nation Of Cowards" Holder On Civilian Trials For Terrorists UPDATE: Leahy Says We Don't Need To Interogate Bin Laden
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.

digg this
posted by Gabriel Malor at 09:30 AM

| Access Comments

Recent Comments
fuck: "Hey There. I found your blog using msn. This is ..."

Village Idiot's Apprentice: ""I can't tell if this is fake. Considering the sou ..."

m: "I'd be happy to be wrong. I just don't see how to ..."

Noah Bawdy: "Good morning all. Has anyone heard from Sis AKA M ..."

Skip : "Why would a downed pilot call 911? Reporting cras ..."

m: "40 I heard audio from that F-35 pilot that ejected ..."

Skip : "Odds were going to be it was a male pilot, wonder ..."

Rbastid: "NFTs were amazing....if you were the conman sellin ..."

13times: "I don’t really know what to look for. Flo ..."

Slot link thailand: "I simply could not leave your web site prior to su ..."

publius, Rascally Mr. Miley (Mzdiz): " Florence King? The author of the "Misanthrope's ..."

Village Idiot's Apprentice: "I heard audio from that F-35 pilot that ejected, ..."

Recent Entries

Polls! Polls! Polls!
Frequently Asked Questions
The (Almost) Complete Paul Anka Integrity Kick
Top Top Tens
Greatest Hitjobs

The Ace of Spades HQ Sex-for-Money Skankathon
A D&D Guide to the Democratic Candidates
Margaret Cho: Just Not Funny
More Margaret Cho Abuse
Margaret Cho: Still Not Funny
Iraqi Prisoner Claims He Was Raped... By Woman
Wonkette Announces "Morning Zoo" Format
John Kerry's "Plan" Causes Surrender of Moqtada al-Sadr's Militia
World Muslim Leaders Apologize for Nick Berg's Beheading
Michael Moore Goes on Lunchtime Manhattan Death-Spree
Milestone: Oliver Willis Posts 400th "Fake News Article" Referencing Britney Spears
Liberal Economists Rue a "New Decade of Greed"
Artificial Insouciance: Maureen Dowd's Word Processor Revolts Against Her Numbing Imbecility
Intelligence Officials Eye Blogs for Tips
They Done Found Us Out, Cletus: Intrepid Internet Detective Figures Out Our Master Plan
Shock: Josh Marshall Almost Mentions Sarin Discovery in Iraq
Leather-Clad Biker Freaks Terrorize Australian Town
When Clinton Was President, Torture Was Cool
What Wonkette Means When She Explains What Tina Brown Means
Wonkette's Stand-Up Act
Wankette HQ Gay-Rumors Du Jour
Here's What's Bugging Me: Goose and Slider
My Own Micah Wright Style Confession of Dishonesty
Outraged "Conservatives" React to the FMA
An On-Line Impression of Dennis Miller Having Sex with a Kodiak Bear
The Story the Rightwing Media Refuses to Report!
Our Lunch with David "Glengarry Glen Ross" Mamet
The House of Love: Paul Krugman
A Michael Moore Mystery (TM)
The Dowd-O-Matic!
Liberal Consistency and Other Myths
Kepler's Laws of Liberal Media Bias
John Kerry-- The Splunge! Candidate
"Divisive" Politics & "Attacks on Patriotism" (very long)
The Donkey ("The Raven" parody)
Powered by
Movable Type 2.64