Analysis of Texas Marriage Amendment

This whole banning all marriage thing in Texas is picking up steam, and controversy. It's now a for-real factor. My attitude toward it thus far has been mostly one of ironic amusement (partially out of self-pleasure at the thought of having been the first person ever to notice this bit of idiocy), but that's consistent with my thinking it's really a big deal. (In some respects, I'm much more ironically amused about life in general than some people realize.) So here's a serious post about a serious worry that social conservatives should have about this amendment. I have to admit, I'm a little bit surprised that now that it's gotten some public exposure, it hasn't gotten a lot of public grip. The Volokh Conspiracy has a long thread full of comments debating how big a concern this is, with an apparent majority in the "oh please, just relax about it" crowd. Focus on the Family has two warnings about liberal groups who are lying to voters, attempting to trick them into thinking the amendment would call for the end of formal legal recognition of all marriages. They do not engage -- or even mention -- the textualist argument in question, and they strongly insinuate, but do not literally claim, that the people talking to the voters about this are lying about their identities, a claim that has been denied in the Houston Chronicle. Even Charles Kuffner, my former MOB colleague and liberal Texas blogger extraordinaire, writes: I don't buy it and I don't think the voters will, either. Conservative blogger extraordinaire Jeremy Pierce wrote in a comment to my last post on the topic, the most plausible way to read this is clearly not taking 'identical' to mean strict identity but to mean "exactly similar but distinct from. I think that everybody is under-reacting. Here are some facts that seem both important and obviously true: Marriage is, among other things, a legal institution. A legislature could pass a bill or a joint resolution that would end and prohibit the legal institution of marriage. If a legislature were to do such a thing, the relevant statute would include at least two parts: a definition of marrage and a statement to the effect that marriage has no legal status. This is exactly how the proposed constitutional amendment is structured. So, the text of the amendment unambiguously ends state recognition of all marriage in Texas. It is exactly the amendment that someone would draft who wanted to abolish marriage. Now, another important question: how serious is the risk that if the amendment passes, courts will interpret it as striking down even traditional marriage? I don't really know. Probably not huge. But look at what this move amounts to: we're trusting the judges to interpret the amendment the way it was intended. I thought the whole reason people wanted a constitutional amendment was so that we wouldn't be at the mercy of judges with respect to important things like the legal status of marriage. That's why the fact that marriage is already defined as a union between one man and one woman in the Texas Family Code (along with judicial precendent a mile long to back it up) isn't good enough. The amendment leaves marriage more vulnerable than ever -- if what we're really worried about is judicial activism, then we're just inviting the judicial activists to come in and read this text as saying what it is obviously literally saying, and presto, the entire legal institution of marriage in the state of Texas has been destroyed.

Media Matters uncritically reproduced Brooks count/mass error

In an October 25 entry on the Media Matters for America web site, Media Matters repeated claims by New York Times columnist David Brooks that "the amount of American people who have heard about Karl Rove is small." Media Matters disputed the factual claim, but failed to report that Brooks was committing a grammatical error by using 'amount', a mass noun measurement, to refer to 'people', who are discrete entities. From the Tuesday Media Matters site:

New York Times columnist David Brooks claimed that the grand jury investigation into the outing of CIA agent Valerie Plame is "not a politically important story" because "[t]he amount of American people who have heard about Karl Rove is small." But contrary to Brooks's comments, made on the October 23 broadcast of ABC's This Week, recent public opinion polls indicate that the public is well aware of the White House senior adviser and that many have formed an opinion of him.

Texas Bans Marriage: You read it here first!

Today the Texas Freedom Network emailed its subscribers the following "Action Alert":

TFN ACTION ALERT AMENDMENT BLUNDER THREATENS ALL TEXAS MARRIAGES Today legal experts and clergy are warning voters that the proposed marriage amendment on the Nov. 8 ballot includes flawed language that could ANNUL ALL MARRIAGE in Texas. That’s right: Far-right lawmakers demanded a state constitutional amendment to ban same-sex marriage and then approved flawed amendment wording that could end ALL marriages in the state. The language of the proposed marriage amendment reads as follows: 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. Without the word “other” before “legal status identical or similar to marriage” – a qualifier included in marriage amendments around the country – Section (b) actually prohibits all marriage, including marriages defined in the Section (a)! This blunder by far-right lawmakers could leave all marriages in this state vulnerable to challenges in court if Proposition 2 passes on the Nov. 8 ballot. Far-right lawmakers this year failed miserably on issues that working Texas families really care about, like fixing the way Texas pays for its schools and restoring full funding to the Children’s Health Insurance Program. Now we know that they have even failed to protect marriage in our state. TAKE ACTION · Protect marriage and all Texas families by voting “NO” on Nov. 8. Early voting begins today! · Write a letter to your local newspaper to warn readers about the flawed amendment and its threat to all Texas marriages.

The Texas Freedom Network is absolutely right about this. I pointed out as much in May, three days after the thing passed the Senate. Proposition 2 in Texas is the most anti-family law that any state has ever attempted to pass in the history of the United States of America. People who care about family should stop at nothing to defeat it.

Department Web Page

I've just updated my department web page with a new picture and a list of a bunch of questions about imagination I've been thinking about. Check it out if you care to see such things.

Religion doesn't matter, so long as they're religious

Check this out. Last Thursday, Tony Perkins sent out a Family Research Council "Washington Update", as he does most days, and, as it often does, it included two items. The first was a lofty statement about how religious convictions shouldn't alone be considered as a reason to oppose or to endorse any particular political player. He took issue with complaints about Harriet Miers's evangelical Christianity, but he also warned his base not to favor her merely on that basis.

The same must be said now for advocacy of Harriet Miers. We are the last people on earth to object to the news that she is a committed Christian; the Good News is, above all, great news for her. And we reiterate, this fact about her is neither grounds for objection nor a fit object for examination by the Senate. By the same token, this fact is not grounds for certifying her to us or to the public. It's not just that religious conviction is an unreliable indicator of a judicial philosophy (though it clearly is), it's that inferences drawn from an individual's religious affiliation have no place in decisions to nominate or confirm a judicial appointee.

That all sounds pretty much exactly right to me. I read this piece and had a rare moment when I thought that Mr. Perkins had really had something sensible to say. Then I read the very next piece, which immediately followed that one in the same email:

Lynn charged the President with having a "religious litmus test." Why? Because the President dared to say back in 2002 that he would select judges who understand "that our rights are derived from God." Horrors! Imagine that. Why, Bush believes that Jefferson was right when he wrote in the Declaration of Independence that we are "endowed by [our] Creator with certain inalienable rights."

The man immediately turned around and wrote about how it's ok to only endorse candidates who believe that we wouldn't have rights if God didn't give them to us. I have no idea how to make sense of this. It's not just that he obviously didn't mean what he said in his first claim; it's that he doesn't even seem to care how inconsistent he looks.

In lieu of flowers...

I never really did understand the point of making expensive gestures to dead people. I think this guy has the right idea. Thanks to Jess for the link.

Anti-Mainstream

The rhetoric from the Family Research Council is even more shocking than usual today. Here's Tony Perkins:

Liberal advocacy groups are also delving into the nominee's background. A story in a homosexual newspaper--The New York Blade--reports on Dallas homosexual leaders' meetings with Harriet Miers when she sought election to the Dallas City Council in 1989. "She was not hostile, nor did she come across as some kind of right-wing ideologue," said Louise Young, formerly with the Lesbian/Gay Political Coalition of Dallas. Ultimately, the group declined to support Miers. ... Despite this non-endorsement by his group, Marc Lerro said his fellow homosexual leaders viewed the fact that Miers met with them and filled out their questionnaire as "a positive gesture." Today, Lerro says "I can't say...she will be good on our issues, but on a personal level, she was very open to having gay people serve on boards and commissions." ... I have a concern that Miss Miers was helping to legitimize the drive of homosexual organizations for power and influence over our public policies. You can be sure Harriet Miers will be closely questioned on these and other matters when she appears before the Senate Judiciary Committee.

It looks to me like Tony Perkins just came amazingly close to expressing concern over the fact that the nominee didn't come across as some kind of right-wing ideologue.