Tuesday, May 24, 2005

Texas Bans Marriage!

Overzealous anti-gay lawmakers in Texas seem to have gotten carried away! In an attempt to ban gay marriage, lawmakers in the Texas House of Representatives and Senate seem to have passed a constitutional amendment that would ban all marriage! Here is the full text of the newly proposed section of Article I of the Texas Constitution, proposed by HJR 6, which has been passed by both chambers:
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.
A very radical change indeed! Texas cannot recognize any legal status identical or similar to marriage! I'm not sure what all would count as identical or similar to marriage, but I do know of one legal status that is definitely identical to marriage: marriage! I didn't realize the Texas legislature was so broadly anti-family. Voters in the state of Texas will get a chance to vote on this Constitutional amendment in November. Let's hope that they stand together to protect the institution of marriage from this anti-family Constitutional amendment.

17 comments:

  1. Indeed it's even funnier. To apply (b) you need to use the definition in (a). Thus the state cannot create or recognize a legal status involving the union of one man and one woman. But it could still recognize other kinds of unions, eg same sex unions and unions involving more than 2 persons.

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  2. Obviously, neither of you is familiar with the Doctrine of Clear Mistake. Reading section (a) in conjunction with (b) does lead to the logical conclusion that both of you have reached, but it is also (as you both acknowledge) plainly in contrast to the intent of the legislators and the will of the Texan people, and obviously due to faulty drafting. A reasonable court would strike down or limit the word "identical" not to preclude marriage (clearly defined in section (a)) and construe (b) to prevent the conferral of the legal status of marriage to any union not consisting of one man and one woman (meaning what is in section(a)).

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  3. What about children? If a family of man, wife and children come into Texas, can the children claim rights that turn upon the existence of a marriage? (I don't know of any such rights offhand, but it doesn't seem implausible that they exist.) The answer would seem to be no -- in Texas, a marriage shall consist only of the union of one man and one woman.

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  4. That's a good point, CriticalObserver. I guess maybe I should have written my post with ironic undertones.

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  5. Given that some view marriage as nothing more than a legal contract to share wealth and property, banning anything that resembles marriage may also void the majority of business contracts in the state as well.

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  6. CriticalObserver's point is well taken: The Texas legislature will be rescued by Activist Judges doing what is Right instead of what is Written.

    At which point, I imagine, Tom DeLay will threaten them with impeachment!

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  7. “I have discovered an important political fact that is often overlooked, as it had been by me: people do not care so much for their own survival —or, indeed, that of the human race— as for the extermination of their enemies.”

    Bertrand Russell

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  8. Just to be clear, those who oppose activist judges on originalist grounds would have no problem interpreting this as it was originally intended. There's nothing inconsistent about opposing people who take things as they weren't originally intended while approving of those who take something as it was originally intended, even if what it strictly speaking says isn't how you're taking it.

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  9. No, no, no, you've got it all wrong. You're supposed to read "(b)This state or a political subdivision of this state..." as an EXCLUSIVE 'or.' One of them may, but the other may not!

    Hope you don't mind if I spread this around a bit.

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  10. Well I think the context is misconstrued because hjr 6 was an addition to the given Texas Statutes already enacted, therefore further defining the context of a marriage in Texas. Am I wrong?

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  11. Well, HJR 6 adds a new section to Article I of the Texas Constitution, so I guess you could say that technically, it's an "addition to the given Texas Statutes already enacted". But none of the rest of Article I of the Texas Constitution has anything to do with marriage. Ironically, Article I is the "Bill of Rights" in Texas. So there's no previous Constitutional definition of marriage for HJR 6 to add to.

    You can see the entire Article here. The new section would just be tacked on at the end, as §32.

    Now there is some language in the Texas Family Code about what sorts of people are eligible for marriage. I don't have my books handy, but I know it's one of the first sections in Chapter Two of the Texas Family Code, in which the Legislature specifies that marriage can only be achieved between a one man and one woman. There are also court decisions backing up this requirement. (In one interesting case, which again, I don't have handy to cite, the court ruled that a transgendered person keeps his original gender for purposes of marriage -- so if I become a woman, I still can't marry a man in Texas.)

    The difference, of course, is one of status. A Constitutional amendment needs another Constitutional amendment, complete with voter approval, in order to be changed. If the Legislature becomes much more progressive in the next twenty years, it could just amend the relevant part of the Family Code to permit homosexual couples to marry. But if the amendment passes, then even the most progressive Legislature on earth can't overturn it without a majority of Texans behind them. This would be very, very difficult.

    But the original charge (made here, for those of you who are confused by this discussion) was that I had taken the amendment text out of context, making the Legislature look stupider than it actually is. I maintain that I have not taken it out of context -- I've given all the relevant information about the new proposed section in the Texas Constitution. In particular, it would *not* be a mere part of an already-existing body of Constitutional law on marriage.

    If you think that I am leaving important information out, then please, tell me what that information is. I don't claim to have intimate knowledge of the ins and outs of Texas statutes. I'm not a lawyer. But I work with it a lot, and I've read most of it more than once. I really don't see that I'm leaving anything important out.

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  12. Here's an amendment to the Kansas Constitution approved by 70% of voters April 5:

    “Marriage. (a.)The marriage contract is to be considered in law as a civil contract. Marriage shall be constituted by one man and one woman only. All other marriages are declared to be contrary to the public policy of this state and are void. (b.) No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage.”

    Cute stuff, huh? First of all, it could be argued that "only" could also mean "ever," banning all re-marriage! But that is unlikely (we hope). More to the point, what are the "rights and incidents" of marriage? Child custody? Adoption? Co-habitation? Joint ownership of property?

    This is what happens when ideology replaces law.

    kdn in Kansas

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  13. Check out the latest from Texas. Big Oops you guys wrote about earlier.

    savetexasmarriage.com

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  14. "In one interesting case, which again, I don't have handy to cite, the court ruled that a transgendered person keeps his original gender for purposes of marriage "

    I believe that was Christie Lee Littleton you are referring to.

    However, in another case in Florida, it was ruled differently.

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