If You Got Married in Texas in the Last Few Years, Are You Really Married?
That’s the news we’re hearing out of Austin today. When Texas added a constitutional amendment in 2005 banning gay marriage, it may have actually banned all marriage, says attorney general candidate (and former Vinson & Elkins partner) Barbara Ann Radnofsky.
Fort Worth Star Telegram broke the story. Slate sums it up:
A Houston lawyer who is the Democratic candidate for attorney general claims that a 2005 Constitutional amendment that was supposed to ban gay marriages actually took the whole thing a bit further than anyone expected. The amendment states that “marriage in this state shall consist only of the union of one man and one woman.” So far, so good.But then comes Subsection B: “This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.” That was supposed to ban any form of civil unions or domestic partnership but may have put the legal status of all Texas marriages in doubt.
Texas: 3500 sq ft, a Lexus and babies out of wedlock?
The current attorney general and conservative groups say Texas still has the power to grant a marriage between a man and a woman. They say the clause serves simply to ban same-sex civil unions and domestic partnerships.
But AG candidate Barbara Ann Radnofsky — who spent 27 years at Vinson & Elkins — disagrees. She says the clause “eliminates marriage in Texas.” From the Fort Worth Star Telegram:
She calls it a “massive mistake” and blames the current attorney general, Republican Greg Abbott, for allowing the language to become part of the Texas Constitution. Radnofsky called on Abbott to acknowledge the wording as an error and consider an apology. She also said that another constitutional amendment may be necessary to reverse the problem.“You do not have to have a fancy law degree to read this and understand what it plainly says,” said Radnofsky.
(Radnofsky’s degree is from the University of Texas.)
On the upside, Texans who made bad marital matches in the last few years may be saved the trouble of messy divorces.
Texas’ gay marriage ban may have banned all marriages [Fort Worth Star Telegram]
Are All Marriages Banned in Texas? [Slate]
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Comments
First. The courts won't interpret it this way obviously
First to say that I'm gay and live in Texas!!!!
The interpretation of that amendment is so amateurish, you'd think she consulted Mystal.
this woman just tanked her AG candidacy. all marriages in the last 4 years are void. that's the law the people can believe in.
who else is freaking out about ca bar results in about 28 hours?
Oh please. If anything, the amendment is unconstitutional and the marriages are fine.
Great, she just won the 10-20% gay marriage voting bloc in Texas, but lost the 60-70% traditional marriage crowd. Not exactly the wisest political move I've ever seen...
I agree with #1...no way will the Texas court system interpret this as "eliminating" marriage. Though I will admit that the amendment was inartfully worded. I'm guessing some HYS graduate in the Federalist Society probably drafted it.
She practiced for 27 years and that is her reading? Seriously. No taking into account that the sentence is framed as a non-creation or recognition of status identical or similar to marriage. Doesn't say anything about not recognizing marriage or invalidating the concept of marriage...
The two clauses arguably contradict, but I think nearly any court would hold that it should not be interpreted so as to ban all marriage - otherwise the first clause makes no sense whatsoever.
Even Mystal wouldn't torture the language enough to get to Radnofsky's bizarre conclusion. As a matter of logic, since the preceding subsection provides for marriage and defines what it is you can't read subsection B to then invalidate that which was just prescribed. As a matter of language, had they intended to outlaw marriage B would have to read "This state or a political subdivision of this state may not create or recognize MARRIAGE OR any legal status identical or similar to marriage." (emphasis on new text). They didn't. Next.
Even Mystal wouldn't torture the language enough to get to Radnofsky's bizarre conclusion. As a matter of logic, since the preceding subsection provides for marriage and defines what it is you can't read subsection B to then invalidate that which was just prescribed. As a matter of language, had they intended to outlaw marriage B would have to read "This state or a political subdivision of this state may not create or recognize MARRIAGE OR any legal status identical or similar to marriage." (emphasis on new text). They didn't. Next.
If she did anything, it was to prove the law was unconstitutional b/c of the invasion on privacy rights. If anything, her argument would overturn Texas' action in banning gay marriage.
First to say that leaving my (not)wife just got a lot cheaper!
YeeeeHawwww!!!!!!
Politics. Not only politics - but gay politics. Pulleeease.
In other words, the question is whether marriage is identical to marriage.
This is why the general populace hates lawyers.
FEAR FEAR FEAR FEAR. The liberal way.
16
In CA, the domestic partnership statute provides that domestic partnerships "...shall have the same rights,
protections, and benefits, and shall be subject to the same
responsibilities, obligations, and duties under law, whether they
derive from statutes, administrative regulations, court rules,
government policies, common law, or any other provisions or sources
of law, as are granted to and imposed upon spouses." Thus, they are identical to marriage but not called marriage.
Radnofsky obviously never learned the rules of constitutional construction.
Section "A" needs no construction becaue it is obvious.
Likewise, section "B" is equally obvious, and means that the Texas Constitution does not permit "everything but marriage" laws that have been enacted in some other states.
It seems that a plain reading of the statute is that subsection (A) defines marriage and subsection (B) declares illegal any legal status identical to marriage (as defined in subsection (A)) or similar to marriage. Any other reading would be an activist judge looking beyond the plain language. I always thought critics of activist judges say it's not within a judge's power to reinterpret a statute when the plain language is clear. If the legislature wrote a crappy law they should rewrite the law. Or are we saying that judges can use their common sense and policy when interpreting laws?
13,
It may well BE that, but it certainly doesn't prove it.
16 = Win. I hate myself.
FWIW, Radnofsky's not-particularly-persuasive interpretation isn't original either; I was at UT Law when the amendment passed, and this was a regular argument around town. The best part of this story is Radnofsky's claim that "[y]ou do not have to have a fancy law degree to read this and understand what it plainly says," because only a lawyer - or an overstimulated 1L - could give it her construction.
I have yet to hear a persuasive explanation of how a constitutional amendment can itself be unconstitutional.
I personally support Ms. Radnofsky's bizarre interpretation of the Texas Constitution, which in no way is politically calculated as an opportunistic means of criticizing her political opponent.
Rather, we should herald Ms. Radnofsky's efforts to attain social justice (i.e., if homosexuals can't marry, then nobody can). This approach to constitutional interpretation comports with my own personal agenda regarding legal unions: walrus marriage.
Ladies, once you go ebony, blubbery, and tusky, you never go back. Where the white women at?
BESTIALITY SECURE
Doesn't Texas have common law marriage? Does that moot the whole issue? As long as people held themselves out as married, they might have a common law marriage, right?
As always, another solid post from Walrus.
24, I know this is complicated but there are 50 state constitutions, one for every state, and one United States Constitution. A state constitutional amendment can conflict with the United States Constitution and be unconstitutional.
From the very first result on Google...
"Texas calls it an "informal marriage," rather than a common-law marriage. Under § 2.401 of the Texas Family Code, an informal marriage can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a 3-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married."
This would never happen in... err, wait. It did happen.
Don't mess with Texas (marriages)!
I was a LL.M. student at UT Law in 2005 when I witnessed a rally against the proposition to amend the State Constitution. At the same time, at City Hall, a group of KKK members were also rallying in favor of the amendment. So I went there hoping to see some troglodytes dressed in white sheets and cone-heads. But to my surprise, there were more cops that KKK members. What a rip-off!
Anyway, Travis was the only County in which the proposition was rejected (60/40). So I agree with #1 and #7.
Argentine Associate
28: At least as I read it, that doesn't seem to be his question. The question was more like: how can a STATE constitutional amendment be unconstitutional based on the STATE constitution? It was one of the crackpot arguments that the pro gay marriage crowd in CA was trying to make to get Proposition 8 off the books.
why would the legislature provide for marriage in one section, and then ban it in the other? now thats surplusage.
That's what happens when you leave important draftsmanship to straight people -- they fuck it all up. The only lawyers worse at drafting are walruses. True.
- Lawyer Gay Secure
That's what happens when you leave important draftsmanship to straight people -- they fuck it all up. The only lawyers worse at drafting are walruses. True.
- Lawyer Gay Secure
Subsection A defines marriage to be nothing more than a union between a man and a woman: "Marriage ... shall consist only...". Subsection A confers no legal status whatsoever on such union but does limit such unions to one man and one woman. Subsection B confirms that such union i.e., a marriage union, has no legal status in the state of Texas.
Texas' "intormal marriage" is also eliminated by this amendment.
I'm a strict constructionist (not originalist, there is a difference) zealot and think that the US Supreme Court too broadly "interprets" the US Const and yada yada yada...
there is no problem with the language of this amendment to the TX Constitution. It's clear enough to me. The first part defines marriage. The second part prohibits creation/recognitition of something identical or similar to marriage.
If a married man/woman couple comes from another state to Texas, they have a marriage under the TX Const and Subsection B does not apply to them. They don't have something identical or similar to marriage, they have marriage itself.
Subsection B only applies to couples who come into the state with domestic partnerships, civil unions, and "marriages" from other states but it's two men or two women.
Seems clear to me.
33, the California Constitution has two "tiers" of amendments, revisions and amendments. If it's a substantial change to the Constitution, it's supposed to go through as a revision, not an amendment. So the argument in CA was that Prop 8 couldn't be passed as an amendment. This is not applicable in Texas, and I don't think anyone made the argument that it was.
There but for FORTUNE go you or I—Joan Baez
Around and around the wheel she goes, does she get half nobody knows—the TX divorce fates.
Ya’ll might want to settle darlin—Texas divorce attorney
39, that married man and woman from another state might have a marriage recognized in that other state, but in Texas, both the state and any subdivision thereof are prohibited from recognizing and legal status of such marriage.
Has anyone ever read the TX constitution. It's huge!!! Like a thousand pages long huge. This does not surprise me at all.
Kash,
I think we all know that in Texis the car is known as a "Lexis." I fear that Elie's typos may be rubbing off on you.
Hello, all you anti-surplusage folks.
Has it occurred to you that a coherent reading of (A) and (B) is to say that marriage is only between one man and one woman, and that whoever can establish such a union, it isn't the state or a political subdivision thereof?
On this reading, the amendment defines what marriage is and removes it from the purview of government entirely.
That's probably not what was intended. But it's a perfectly coherent reading of the amendment -- one that preserves meaning for both (A) and (B).
So the anti-surplusage canon doesn't get us to your conclusion (which is that the meaning is obvious).
Rather, you need to resort to some understanding of legislative/constitutional intent. And you probably need some legislative history (gasp!) to get you there.
39, you say that marriage has been defined by subsection A, but defined as what? Nothing more than a union, and furthermore, such union has no legal status in Texas.
In construing laws (and constitutions), one starts with the proposition that there are no superfluous words and that all the language should be given effect. Thus, the amendment should be construed in a way that makes sec. 1 and sec. 2 both meaningful. A construction that posits that sec. 2 trumps sec. 1, and thus that sec. 1 is simply a waste of words that have no effect, is disfavored. This is not activism, 20, but basic statutory construction, and is agreed to by liberals and conservatives.
That said, the drafters of the amendment did a pretty lousy job of it. Sec. 2 should have just said "similar to marriage" and left it at that; saying "identical" to marriage was foolish, not only because it would seem literally to outlaw all marriages, but also because it really would not outlaw domestic partnerships anyway, because they are not "identical" to marriage.
#20 says it all. Close comments.
--Libertarian Lawyer (TX/NY/CA)
47, in view of 37's analysis, how is the second section "trumping" the first, and how is sec. 1 a waste of words without effect? They both have effect and both agree that a marriage union has no legal status in Texas.
No no no no. This state law is only meant to apply to gay people because they are gay. Am I missing something here?
20 and 37 are correct. Subsection A defines the term marriage and subsection B prohibits it. It's a very common legislative structure to provide definitions first and treatments later.
29 - I believe subsection B of the amendment bans informal marriage.
If marriage is a union of one man and one woman, then a union of two men, or a union of two women, is neither identical to, nor similar to, marriage thus defined.
So I'm not sure what is preventing gay marriages from taking place in Texas.
Just admit that the provision is ambiguous (poorly drafted) and thus look to the legislative intent. We do it with statutes all the time. I don't think the legislature meant to end marriage.
53, what is the ambiguity exactly?
I should probably know the answer to this, but is Texas an accredited state of the United States of America?
CHECK YOU NUPTIALS
CHECK YOU MARRIAGE CERTIFICATE
Actually wait! Now that I think about it, by saying TX can't 'recognize' any marital status, not just those since 2005, but ALL TX marriages are annulled by operation of this amendment.
AND it arguably DOESN'T EVEN PROHIBIT gay marriage--because it is so particular about the whole one-man-one-woman definition of the proscribed behavior!
--Ashamed to be admitted in TX
20-
It's a pretty plain reading if you're a mental deficient.
59, tell me how, in view of subsection B, Texas can recognize a legal status of any marriage? Per subsection A, Texas says that a marriage is a union between a man and a woman, but how does Texas give that any legal status? It is a union between a man and a woman and nothing more.
Post-Fail. I mean seriously, "The current attorney general and conservative groups say Texas still has the power to grant a marriage between a man and a woman"? How about "as do people who have gone to law school and/or have not completely lost their minds."
The plain reading of the amendment is that it defines marriage as a union of a man and woman, and bans the creation of some other institution, not fitting that definition, that confers the same legal status. Thus, instead of saying the State shall not recognize marriage, it says it shall not recognize "... any legal status identical or similar to marriage"
Sorry, but how is this even an issue? And oh btw, I'm pro-equality and think amendments like this are far more antithetical to American values than gay marriage/civil unions would be. I just don't think its ok to accept any stupid legal argument that comes down the pike just because it favors my political stance.
I am against gay marriage AND think that Texas got it wrong here.
To be identical, two things must share all the same characteristics. Thus, a legal status identical to marriage is not distinguishable from marriage itself.
To be identical, any other legal status must include the 'one man and one woman' property.
Now, imagine in defense of the clause one said that "all this means is that we have a marriage law in statute 1, and the clause prohibits creating another identical law in a future statute". That position wouldn't suffice because the clause refers to legal STATUS, not source of law.
The state supreme court could probably resolve the issue by saying "identical" doesn't actually mean all characteristics must be the same; they could do to "identical or similar" what John Marshall did to "necessary" in Necessary and Proper".
http://en.wikipedia.org/wiki/Identity_(philosophy)
Oooooooh, SNAP! Texas done messed up, but good.
61, what do you mean by "same legal status"?
I agree it's problematic. Reads to me like: Texas only recognizes marriage as between a man and woman. Texas itself (starting whenever the amended went into effect) does not have the power to create marriages or anything identical to marriage.
This doesn't stop men and women in other states to get married then return to Texas as married couples, but Texas no longer has the power to marry them.
Sweet irony. That's one way to protect the institution.
61, the only thing the amendment says about a legal status is that Texas may not create or recognize one that is identical or similar to marriage.
65, where does it say that Texas "recognizes" any marriage. The amendment prohibits such recognition.
Yup, looks like they ban creation and recognition of anything that is identical to a "union of one man and one woman" or similar to a "union of one man and one woman."
I am going to guess the geniuses behind the drafting on this weren't in the top half of their classes. Time for a redo. Some folks over in Texas just earned themselves a "stupid" sign.
I wonder how long it will take the IRS to swoop in on joint filers in Texas... A lot of people gonna owe back taxes since 2005.
So funny.
The nudniks here arguing that marriage is still recognized in Texas or that it has some legal status in Texas are as ineffective as lawyers as the amendment's drafters.
64 - I'm defining "status" to mean the thing conferred by marriage, as distinct from marriage itself, which is defined in part A. The commenter on here who said the only way this would invalidate marriage is if it said "Marriage or a statuts identical to marriage..." has it right on. When you define something, you don't then refer to it with different terminology. You refer to it with the defined term, and this statute doesn't do that.
You are all TTT idiots... the law can be construed in a perfectly non-contradictory way. Sit back as my Boalt degree and common sense explain:
By saying "shall consist", Section A narrowly defines existing marriages in Texas to include only those between a man and a woman as of the active date of the legislation. It applies, therefore, to marriages already entered into as well as future marriages (to the extent future marriages may be authorized).
Section B, however, limits the state's power to authorize future unions identical to or similar to marriage. This is a prospective limitiation applying only to future attempts at marriage (and that means all marriage!), as any nitwit can see from the fact that it limits the state's power to act, rather than changing a retroactive definition as Section A does.
Now get back to studying hard for your 5th bar attempt, kids...
73, thanks for nothing for *your* definition of "status." I hoped you would provide some definition of "legal status" that related to this amendment. Your definition of status as a thing conferred by marriage is not applicable to this amendment because subsection B prohibits Texas from conferring a status that is identical to marriage.
73, don't you think that by the phrase "legal status identical . . . to marriage" the amendment, by its text, equates marriage with a legal status?
Furthermore, "status" is nowhere defined in the amendment. Part (A) does define "marriage." And part (B) uses the term "marriage." So I don't see how you can say that "this statute [sic] doesn't" use the term defined.
This argument for invalidating all marriages since 2005 is well founded, David.
See also my compelling analysis that the $1.26 billion Pepsi default judgment would stand.
74's stupid > 73's stupid. Existing marriage was already 1M1W by statute so your temporal def is superfluous and unsupported by the text.
People are letting their understanding of what the legislature meant color their analysis. Radnofsky's reading is not patently ridiculous. Consider an analogy: The crime of seal clubbing in this state shall consist only of the beating of one seal by one man. This state or a political subdivision of this state may not punish any crime identical or similar to seal clubbing. There is nothing inconsistent in those two statements. You wouldn't say that because the state defined seal clubbing that it automatically allows seal clubbing. It is only because you think of marriage as something that must be allowed in some fashion, i.e, as something not akin to a crime, that you can't read the two propositions correctly. Before I hear that the analogy doesn' t show that all beating of seals isn't banned in the above scenario, that isn't why I am offering the analogy. Rather, I am offering it only to demonstrate that the two statements do not stand next to each other in any contradictory fashion. The first defines a proposition, the second sets forth the state's attitude toward that proposition.
A better analogy,
Sodomy in this state shall consist only of the union of one man and one man. This state or a political subdivision of this state must not permit any union identical or similar to sodomy.
If Texas had said that, no one would be arguing that proposition A meant that Texas didn't mean to outlaw sodomy.
-79
79/80 -- Your point is clever, but marriage isn't a crime, and the state clearly wasn't attempting to ban all marriage. This is not a criminal statute. No one, anywhere contests that. Everyone knows what the state intended, even if the language can be contorted to mean something else.
If the drafters had made a small change, this preposterous argument wouldn't be had: “This state or a political subdivision of this state may not create or recognize any legal status, other than betweeen a man and a woman, identical or similar to marriage.” Nonetheless, I think by reading the two parts of the amendment together (of course, with the knowledge that the legislature was defining marriage here, not defining something in the criminal code), it becomes obvious that the term "legal status" refers to some state-sactioned institution the same as marriage in many or all ways, except in the one way defined by the first part of the amendment.
Wah. Wah. Wah. I say straight marriage is legal because of course it's legal. Wah. Wah. Cry me a river, straighties. You are reasoning out of your asses, and it's embarrassing.
-- Lawyer Gay - laughing at your ineptness
Laughing at your being an evolutionary dud 82
how does this ban all marriages?
if this lady's interpretation is correct on the second point wouldn't this provision only ban marriages as defined in point one. This would mean that gay/ polygamous/ alien-human marriages arethe only kind allowed. or am I missing something?
You are all idiots. The first section of the amendment states that “marriage in this state shall consist only of the union of one man and one woman.”
That means that Texas was free to grant ONE marriage between a man and woman and none after that.
84,
Yes, you're missing the "or similar" part.
Hey 81, you are the 81st comment on a blog post about a newspaper article, all of which are directed to the disagreements about what this amendment means. For you to pronounce as indisputable that "the state clearly wasn't attempting to ban all marriage ... Everyone knows what the state intended," could be surpassed in idiocy only by your conclusion.
You blathered: "the term 'legal status' refers to some state-sactioned institution the same as marriage in many or all ways, except in the one way defined by the first part of the amendment." What is this state-sanctioned institution to which you refer? The amendment does not say anything about an institution. Are you commenting from a state-santioned institution?
If your word salad can even be parsed, it can't be correct because under this amendment Texas has banned not only any legal status that is similar to marriage but also any legal status that is identical to marriage.
This is really messy reasoning by all the folks who think this is ambiguous.
Subsection A: marriage defined as 1 man + 1 woman
The subsection B: Texas isn't going to create a legal status identical to marriage (that is, calling 11 man + 1 man Narriage and recognizing 100% rights and privileges of two married people, like survivorship, intestate succession, or parental/guardianship rights) or similar to marriage (e.g. Narriage is a legal status for same-sex couples, trios, amigos that give something like 90% of rights associated with the legal status "marriage" that that has been restricted by Subsection A).
I'm pro-gay marriage, and I don't like the amendment. But that is what it says.
This is really pretty simple folks. In fact, this argument is so ridiculous that responding to it is probably the equivalent of responding to trolls. I will anyway though, because it is less boring than my work.
Subsection A defines "marriage"- between a man and a woman only.
Subsection B bans any legal status similar or identical to marriage.
Subsection B glaringly omits banning "Marriage" (as defined in Subsection A), therefore its legal status is unchanged by the law.
Suggesting that the legislature meant "Marriage" by "any legal status identical or similar to marriage" is a frivolous legal argument, and clearly driven by politics not reason, (let alone common sense). If the legislature intended to ban marriage it would have said "marriage or any legal status identical or similar to marriage," which it did not.
Texas is one BIG STUPID state.
89 you are a failure and a disgrace to the profession. If the legislature intended NOT to ban marriage it would have said "any legal status other than marriage that is identical or similar to marriage," which it did not.
91,
You are also a failure since you don't understand what "identical"' means, and thus why your hypothetical alternative clause is self-contradictory.
89 grammar fail: marriage [noun] is defined as between a man and a woman [prepositional phrase not equivalent to a noun]. The grammatically tenable and logically correct interpretation of subsection A is that marriage is defined as a union and only that union. Whether such union has any legal status under Texas law is left for subsection B, which prohibits the state from giving it any legal status.
Has anyone identified this one man and one woman who are married?
i love elie!!!
Basic rule of statutory interpretation states that you must give effect to all of the statute. If you read section B as banning all marriage then you interpret section A out of existence because it states that marriage "shall consist of..."but marriage doesn't consist of anything if you read section B as banning it entirely. The statute clearly is only referring to civil marriages and not religious marriages (thereby defeating any argument that religious marriage would still exist keeping section A alive that way), and even if you argue that the statute refers to religious marriages that would violate the first amendment. The remedy would be outright overturning, or interpreting the statute via a more narrow scope, such as only referring to civil marriages, so as to avoid the Constitutional issue. Since such an interpretation is both possible and clearly intended the result is obviously that the statute is limited to civil marriages only, and therefore the above analysis applies
96,
Clause A: "bestiality shall consist of one or more human persons engaging in sexual behavior with a non-human animal."
Clause B: "“This state punish any act identical or similar to bestiality.”
Clause A is not read out of existence simply because all forms of bestiality, or similar acts, are banned.
96, the amendment is not banning all marriage, it just prevents Texas from giving marriage any legal status. That is what subsection B says. One man and one woman can still get married in Texas, forming a union. They just cannot lay claim to any special legal status as a result of that.
Always be sure to check the Marriage Records before getting married to sometime.
Love is blind, and you may be cheated by some Don Juan
86
how similar does it have to be, to be similar?
the quick answer is if it is some sort of union. i.e. civil union, same sex marriage, polygamy.
But if she is truly saying the first part defines marriage, and the second part forbids that definition and similar things, you could make the argument that marriages that are not between man and woman are not at all similar to "Marriage" as defined by the above.
It seems like a better point to make if she really wants to stick it to the texans.
That's the worst interpretation I've ever seen. It says "any legal status identical or similar to marriage". It does not ban marriage but other legal statuses "identical or similar to marriage". Moreover, to accept her reading would be to render the first subsection irrelevant. I can't believe she was with V&E for 27 years!
Thisarticle is a perfect example of why the general public has a great distain for lawyers.
The language and intent of the constitutional provision is completely unambiguous, yet a number of alleged attorneys here seem to support the article's author who is pro-homosexual marriage.
16 has it right. The issue is wether marriage is "identical" to marriage. Can you distinguish marriage from something that is identical to marriage. How, and on what criteria? And if you can, how is it still then "identical" to marriage? Does the distinguishing feature not preclude it from being "identical"? However, the use of the phrase "identical to marriage" implies that there does in fact exist, something which is identical to marriage but not marriage. Unfortunately, this is where the stupidity shines through. It is impossible for two things to be identical but different.
Don't try and save money by hiring illegal immigrants to draft your constitution.
Proof read you constitutional amendments.
As for the two section contradict, Section A clearly defines marriage and B prevents Texas from either creating or recognizing (any longer) something "similar" or "identical". Whether you agree or disagree that this prevents all marriages or not, the two sections don't contradict each other. It's very poor drafting.
Also, 84 makes a very good point.
In the context, the word "similar" should probably be defined too. How similar does it need to be to be "similar"? Arguably, the legal union of two men, or two women, or two men and walrus, or PE and JaKe, are not in fact similar to the union of a man and woman.
3500 sq. ft., a Mercedes, and a hot husband
:)
Under normal principles of statutory interpretation, there's just no issue here. I don't think any court is ever going to adopt Radnofsky's interpretation, especially the one with the last word, the Texas Supreme Court.
isn't it a canon of statutory interpretation to read provisions in a way that don't conflict with each other...
I can't believe some of you get paid for this.
Sub. (B) does not ban marriage; it bans things similar or identical to marriage. The only logical reading is that it bans those things similar to or identical to marriage...that are not marriage.
Radnofsky's argument is a loser, but the drafting of the amendment made the argument easy to make. Her point is: this is the attorney general? a guy who allowed a sloppily drafted amendment to our constitution? She's got a good point.
103, I think you're off a bit - accepting her reading does create a conflict. You'd be right if (A) was simply a definition. But it's not just a definition. It says "marriage in this state shall consist only of the union of one man and one woman." This means that marriage does exist in Texas (why else would they say "marriage in this state shall consist..."?), and furthermore, in Texas, it shall consist only of the union of one man and one woman. You are right that (B) was drafted in a sloppy manner however. The intent however is obvious and I think the words and context support the legislative intent. The constitutionality of the two provisions, however, is an entirely different matter.
78- Your analysis makes no sense; the temporal distinction is correct, because section B is the only part that is proposective by its language.
And what statute? Citation please...
Radnofsky's argument is a non-starter. The documentation evidencing legislative intent not to eliminate all marriage--just gay marriage--has to be overwhelming.
Neither section is prospective because neither uses other than the present tense. "Shall consist" is the present tense and so is "may create or rocognize." "May" in the context of the amendment means "is permitted only to." There's not a single lawyer on this thread arguing in favor of a gay-only-ban who can think and argue well enough to convince even him/herself.
Hey 110, why will intent be relevant when the text outlaws any legal status for any marriage without ambiguity or contradiction. More importantly, this amendment was adopted by a vote of the people. How would you determine their intent and keep in mind that the statute was interpreted by some before the vote as outlawing any legal status for any marriage?
11- you're a brilliant legislative scholar. "Shall consist" is in Subsection A, and not relevant. As for your argument that "may create" is not prospective, are you seriously arguing that you can "create" something that has already happened? Idiot.
111- you're a brilliant legislative scholar. "Shall consist" is in Subsection A, and not relevant. As for your argument that "may create" is not prospective, are you seriously arguing that you can "create" something that has already happened? Idiot.
If they intended to invalidate marriage w/ that statute, they would've said: "This state or a political subdivision of this state may not create or recognize any marriage."
The operative language prohibiting gayage is "SOMETHING identical or similar to," which sets it apart from the prior identification of what marriage constitutes.
I guess if liberals warp the logic enough, they can overcome the injustice that is common sense.
115, What is the relevance of what the amendment would mean if it were not this amendment under consideration but some other amendment that is worded differently? You have zero legal reasoning ability. If you try to argue what something means, by arguing what something different means, all you do is open up new cracks for insertion of your logical fallacies.
107 has it right. I REALLY can't believe some of you get paid for this.
114, you are confused. The amendment does not say "may create," but "may not create or recognize." That is a present restriction on the state of Texas effective as of the date of the amendment.
109, you can look up the 1-man, 1-woman statute in Texas yourself, and you'll find it unless your research skills are as poor as your reasoning.
118 - how can you "may not create" something that has already happened. Please explain, with examples.
Also, if it's only "present", then how do you define present? The moment the bill is passed by the state congress, but no sooner or later? The moment the governor signs it, but no sooner or later? Or the moment it is effective, but no sooner or later? Your argument is a non sequitur, since"may" or "may not create" cannot be applied only to a fixed moment in time.
It is, by definition, prospective. Idiot.
120 - I don't want to get into the middle of an argument with someone of your obviously immense mental capacity, but I think he/she was focusing on the "or recognize" part.
121 posts, and not one person has said "absurd result?"
45 is a pretty coherent reading of the statute as is, but also clearly not the intent.
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