Actually, that’s not so. Existing law is subject to change via a decision by the judiciary, as you well know. The courts could rule that the Texas Constitution somehow requires Texas to recognize same-sex marriage, and thus vitiate the existing law.
The new state constitutional provision will immunize the law from change by the state judiciary.
And you know all that. I’m surprised at you.
It is in Texas. See, for instance, Marcus Cable v. Krohn, 90 S.W.3d 697, 706 (Tex. 2002) (“we must always consider a statute as a whole and attempt to harmonize its various provisions”).
Another principle of statutory construction is that a court should, if possible, read a statute in such a way as to give effect to every provision. Brooks v. Northglen Assocation, 141 S.W.3d 158 (Tex. 2004) (“When construing a statute, the Court must presume that every word of the legislation has meaning”). It seems to me that secton (a) contemplates the existence of marriage, and that it would make no sense to precisely define marriage if your intent is to abolish it, and everything similar to it.
Finally, courts also look to legislative history when interpreting a statute. Garza v. Garcia, 137 S.W.3d 36 (Tex. 2004) (“When interpreting a statute we may consider the object sought to be attained, the circumstances under which the statute was enacted, the consequences of different constructions, and the statute’s legislative history”). I can’t imagine that there’s anything in the history of this amendment that suggests that it was intended to abolish marriage. To the contrary, everything I’ve read about it indicates that it was intended to strengthen marriage (whether it will accomplish that is, of course, debatable).
While the amendment could certainly have been drafted better, I would be very surprised if a Texas court interpreted it to abolish marriage.
Um…
Wow, you’ve convinced me. I sure wasn’t seeing things your way at first. But, now I am.
I’m surprised right back at you if you thought that was even a remote possibility in Texas. The unanimously Republican Supreme Court of Texas has a slightly greater chance of participating in an on-the-bench group orgy as it does of judicially extending same-sex marriage constitutional protection.
At one time, I bet the people of Massachusetts, Hawaii, and Alaska were confident their courts would never interpret their state constitutions to require same-sex marriage constitutional protection. The prudent course for those interested in assuring the status remains quo is to enshrine it in the state constitution.
I’m kind of torn on this debate. On the one hand, I oppose constitutionally mandated marriage discrimination and wish this amendment would be rejected.
On the other hand, I don’t approve of trying to skew voter opinion with misleading hype, and if the wording of the proposed amendment is really not ambiguous, then people shouldn’t be pretending that it might invalidate all marriages.
On the third hand, I do feel that lawyers (like mathematicians) are supposed to state things as precisely and unambiguously as possible, and if a proposed law or amendment really is badly worded or open to misinterpretation, then it should be relentlessly niggled and nitpicked until the wording is fixed.
I think that’s all the hands I’ve got right now. Carry on.
Again, ain’t gonna happen. This is Texas. There is not, never has been and never will be any danger of the typical “out-of control judiciary” down here. Down here, you don’t like the Texas Supreme Court, you get rid of 'em, and it’s a heck of a lot easier than amending the constitution.
Massachusetts: The Court is appointed by the Governor with the consent of the Executive Council. Justices hold office until the mandatory retirement age of seventy.
Hawaii: Members of the Supreme Court are appointed to an initial 10-year term by the Governor. After that, justices are voted on by the legislature.
Alaska: Supreme Court Justices are appointed by the governor and then run unopposed three years later. If they don’t carry a simple majority, the governor appoints someone new. Then they run unopposed every ten years.
Texas: Statewide partisan popular election to six year term.
I can only think of one instance in the past 30+ years off of the top of my head where the Texas Supreme Court invalidated a portion of the Family Code citing the Texas Bill of Rights, and it sure as heck wasn’t a hot-button issue like same-sex marriage. In Texas we have popular statewide elections and we have them frequently; any justice who decided that they wanted to judicially establish same-sex marriages would be committing political suicide as to statewide election, and they know it. There is absolutely no danger of the Texas Supreme Court growing a set and making a hugely unpopular decision anytime in the near or distant future.