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.

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.

Protect Marriage!

The Houston Chronicle reports that Texas voters will go to the polls November 8 to vote on Constitutional amendments. By far the most interesting proposal is Proposition 2, which would ratify a new Article 32 to the "Bill of Rights" of the Texas Constitution. The Chronicle coverage accurrately states:

If Proposition 2 is approved in a Nov. 8 statewide vote, Texas will join more than a dozen states that statutorily and constitutionally ban same-sex marriage.

What the Chronicle fails to add is that, as I posted in May, Texas would also become the first state to constitutionally ban marriage outright, as it includes a provision prohibiting recognition of any legal status that is identical to marriage. Now is the time for Texans who are serious about defending marriage to get together and bring out the vote against this devastatingly anti-family amendment. Let's get James Dobson involved.

Good speech

Senfronia Thompson, a Texas Representative from Houston, delivered what seems to be a rather stirring speech against the Texas gay marriage amendment. It's quoted in its entirity here, and it's a good read. UPDATE: Changed link to a registration-free one. Thanks, Shari.

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.