An interesting debate, at least for Texas dopers; Proposition 2 on the ballot, which would amend the Texas Constitution to read:
SECTION 1. Article I, Texas Constitution, is amended by
adding Section 32 to read as follows:
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.
This is one of those cases where I believe that the language as written is poorly done, and that if you were to strictly abide by it that it would in fact bar any marriage in the state of Texas, between anyone. I also don’t think that there’s any chance that the Legislature intends that result.
So – (1) does the language forbid all marriage? (2) how should it be interpreted if (when?) it passes?
I don’t think there’s any serious legal debate here; it looks to me like political spin designed to scare away people who might otherwise vote for the amendment. I can’t imagine that any Texas judge – an elected official – would interpret the amendment to eliminate marriage. (Or, if one did, just to thumb his nose at someone, that he wouldn’t be swiftly reversed.)
That does, indeed, look to me like it bans all marriage- it’s the “identical” part that makes it seems so. Plus, it doesn’t only say “create” but “recognise” - so current marriages won’t be recognised as such under the law!
On the plus side for Texas, I think divorce rates are about to go WAY down
There’s no doubt it’s poorly worded. Part B does seem to rule out any kind of marriage whatsoever. And what’s with “union of man and woman”? You can only be married while having sex?
In reality, I think it’s pretty absurd that traditional marriage would be affected, thouch there could be some unintended consequences for common-law marriage. I’m all for throwing the whole notion of marriage out the window anyway and would find it hilarious if done so like this, but I think I’ll stick with the notion and more likely outcome that the proposer intended to enshrine discrimination in our state constitution and vote against it.
Fascinating the lengths some people will go to in order to “keep them homos from destroyin’ marriage.”
They seem to cover everything, including setting up guardianship for all legal questions:
As a Californian, I find the brevity of the proposal refreshing; all the propositions here go on for pages and require a course in contract law to understand.
I do have to admit that the language as written suggests to someone taking it literally that Texas is abolishing marriage. Given Bricker’s point, though, a true literalist would hold that the effect of this amendment would be much like the usual statutes in several states banning common-law marriage: Those already in existence and meeting the legal definition were valid and considered to continue to exist, but you couldn’t legally recognize a new one.
In point of fact, though, the underlying point of Bricker’s post, implied but not spelled out, would be the interpretation: Any marriage that matches (a) would be recognized; under (b), any alleged marriage not matching (a) that is claimed to be identical or similar would not be.
Indiana’s same-sex-marriage case went to the state supreme court. The verdict went against SSM, on the grounds that the purpose of marriage is procreation and the rearing of children. This was a shock to my wife and I. We had been married for 25 years, but we had decided not to have children.
The SC seemed to be saying that we were not married at all, and we’re heterosexual. It’s surprising the word traps governments get into when they try to outlaw something sensible
Fun, but no. “Identical to” mandates two things; the original object and the object that is being compared to it. So the phrase cannot be logically construed to mean that marriage is being banned because it is identical to itself. “Identical to” implies two things: “marriage” and something else that will be compared to it.
We were debating this point at the office today. (We are lawyers, but not the sort that do much appellate work.) The Legislature defines things only to forbid them all the time. Having just defined marriage as only between a man and a woman, it then does not permit anything “identical” to this. Is a union of two men “identical” to a union between a man and a woman? I don’t think so – although it may be “similar”. What, exactly, is identical to a union between a man and a woman such that it is no longer allowed?
And just for the record, I know that they didn’t intend to deep-six the Family Code or that huge part of the Property Code, and I find it unlikely that any judge would ever say otherwise; but I just don’t see how the language they’ve chosen does what they want. My legal writing instructor would slap me across the back of my head for that drafting.
Depends on context: I don’t know how lawyers define identical, but mathematicians, for example, don’t require two separate objects for the concept of “identity”. A mathematical object can be identical to itself (and, in fact, is).
But, if the thing compared is “identical”, it must be the same thing, right? I mean two extemely similar things are not necessarily identical. This use of the word identical seems bizarre.
I tried to take that into account in my “literalist” reading. Literally reading it, you’re right. But what Bricker and I are saying is that you read it practically, with intent taken into consideration:
A defines marriage for Texas.
B says that anything else that doesn’t meet the definition of A but that claims to be a marriage by being identical or similar to A does not get legal recognition by the State of Texas.
It’s very poorly worded. But literalistic reading into construing it as a nullity is not what judges are supposed to do.
This legislation will accomplish some very important goals in Texas. For example, it will distract the voting public from the Texas legislature’s utter inability to deal with its current public education crisis. Texas law already defines marriage as between one man and one woman, in the Texas Family Code:
In other words, the proposed amendment changes the law from “same sex couples cannot be married in Texas” to “same sex couples really, really cannot be married in Texas, and we mean it for reals.” I suppose enough of my fellow Texans thought that the state was swimming in legally recognized same sex marriages until now. Needless to say, it isn’t. The amendment won’t do anything but duplicate existing law. You wouldn’t know it from the reaction it’s getting; people who ordinarily wouldn’t know the Texas Constitution from Texas toast are rallying over the damn thing like it’s the friggin’ Magna Carta. It’s a pointless, maddening bandwagon designed to make our politicians look like they’re accomplishing something when they aren’t. It’s a feelgood measure, if by “good” one means “creepy.”
