Wednesday, October 26, 2005
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.