Happy Day for Texas
 

Today Texas banned marriage.

As part of a slate of constitutional amdendments, the people of Texas added to the state constitution:
Not only have they banned marriage, they have banned all legal statuses similar to marriage!

No longer will the people of Texas be in danger of being trapped by a marriage.

The only way to be safe was to nuke marriage from orbit.

Seriously, this looks to me like the perils of having legislation by masses. The wording of the constitution amendment wasn't what those who voted for it wanted -- I seriously doubt that 74% of the Texan population wanted marriage to be banned.

Should courts pay attention to the intention of those who voted? To the intention of those who wrote the proposition? To the marketing used to push to proposition into the texan constitution? Or should they look at the proposition as a piece of text that means nothing more, and nothing less, than what it says?

(I'm not here to discuss gay marriage or not to gay marriage. I'm interested in the wording problems of the proposition that was passed. The full text of the proposition follows:

# Marriage in this state shall consist only of the union of one man and one woman.
# This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

As an aside, most of the other gay-marriage banning amendments had much much better wording that successfully avoided saying "marriage itself is banned".)

Holy crap. :eek:

Some one needs to read over things before sending them off to the press.

Wow, I thought this amendment was bad, but this literal interpretation actually supports my belief precisely, which is that there shouldn't be a legal status of marriage and that the state shouldn't be in the business of telling people who can or cannot be married or who is or is not married. Of course, I have no doubt that this is merely a coincidence and that those 75% of voting Texans probably don't agree with my opinion and simply want to deny a group its rights.

The question then presents itself how do you get the legal status of marriage to be abolished in practice if it is indeed now unconstitutional? Sue the state for GIVING you a marriage license? Lawyer, we need a lawyer.

Also, how do you get divorced if there's no such thing as marriage? Talk about "no fault" divorce!

nooooo way!!! this sounds too good to be true. nobody in texas caught this?

hmm... did some research. apparently, people in Texas *did* notice, but they didn't care very much!

http://www.chron.com/cs/CDA/ssistory...pstory/3448474

Agreed, it sounds like it doesn't threaten marriage, it abolishes it entirely.

From what I heard the whole campaign against this amendment was that is would outlaw all marriages. And I don't live in Tx. Someone caught it, but i don't think anyone really thought marriage would really be banned. But some lawyers are probably licking their chops right now.

Oh god I hope so. I think our politicians fighting over their abolition of marriage would be far more interesting (read: amusing) then the mud slinging that's been going on over the last 6 years.

Here's an excellent discussion about the issue, and the issue of 'legislative intent' (which I think is a weird concept when a proposition is voted upon by people who don't necessarily have this intent in mind).

http://itre.cis.upenn.edu/~myl/langu...es/002617.html

sadly:

....really wish i were a lawyer in texas right about now....really really wish....

I can't wait to read Molly Ivan's take on this. :D

In a logic class, a newspaper article, or some like context, the wording of this amendment would be a problem. However, any Supreme Court worth its salt will rule that the amendment was intended to ban any sort of institution resembling marriage other than marriage itself. Did they even bother to read their proposal through twice? The poor wording makes it seem as though the backers of this amendment didn't put much thought into it... :D

It's not the end of the fight. It is a foregone conclusion that it will be accepted within our lifetimes to have gay marriage.

I dunno...at least in federal law, my understanding is that the reading of the text itself has precedence over legislative intent, and it's only when the text is ambiguous or unclear that you use other means for its interpretation.

In this case, the text is not ambiguous or unclear on the critical point--Texas will not recognize a legal status identical (or similar) to marriage, where marriage is defined as a union between a man and a woman. Now, there may be ambiguity associated with what constitutes something 'similar' to marriage, and there may be ambiguity associated with what constitutes a 'union', but no-one can argue that marriage is not identical to marriage!

The question becomes, then, if you can use legislative intent even when the meaning of the text is clear, simply because the text itself, as read, gives a ludicrous result.

EDIT: There's a particular case I have in mind--regarding a guy who tried to make a claim on an insurance policy, but couldn't collect because the burglar went through the front door, and the policy itself defined a 'burglar' as someone who doesn't enter through the front door! Supreme court ruled for the insurance company, saying that the definition of 'burglar' within the policy itself has precedence over the common definition of 'burglar.' Can anyone cite it?

It's why I hate legislation by referendum... Christ, when did politicians stop having to do their fricken jobs (as opposed to just not doing them)?

It's almost funny how the 'intent' of the law only means something to their own side, yet the 'exact wording' of the law only comes in to play when trying to downplay a criminal act by a politician.

This would be funny, except you can bet that this referendum that passed by 74% will be revoked by 75% if it turns out that all marriages have been annulled. It's pretty much already moot.

Actually, I wish that the intent HAD been to get rid of marriage. It is a social contract and a social phenomenon, not a political one.

Serves 'em right. Man, i would love to be a divorce lawyer in texas right now...there is some serious money waiting to be made.

See how some of the homophobes like living without marriage rights.

Hey...i thought originalism was back in vogue.

A good friend of mine who happens to be a lawyer (and lives in Texas) is getting ready to get married...I should ask her what she thinks of all of this...

Well, I will love to see this go to court and have those "strict conservative rule by the word" Justices the GOP claims to have uphold the fact marriage in Texas is now banned by their vote.

Ruling ANY other way, would be an activist judge interpretting the law and putting his own spin on it. Something the Neocons claim they are against.

In an effort to subterfuge a social prejudice the people of Texas have managed to create one of the best examples of irony I have ever seen.
Who says God doesn't exist. :lol:

Wouldn't they be dicked even bringing this up to a judge? If it was amended to the state constitution, wouldn't it take a federal judge to do something about it?

No, because it's up to the state courts to interpret the state constitution; especially the state supreme court.

If the people are idiots, and pass dumb constitutional amendments by plebicite, then they deserve exactly what they ask for.

Constitutions should be hard to change. If you make constitutions and laws that can be frivilously changed, there are consequences.

You claim you know the intent. Whose intent matters -- the intent of the propoganda made to pass the law? The intent of the original writers of the law? The intent of the people of Texas when they voted yes?

I really do want to know which "intent" we are speaking about.

Did more research. I'm amazed how many Texas newspaper columnists were writing (pre-election) about how silly it was to think the literal interpretation of the proposition bans marriage! It seems everyone here on TFP sees it clearly. Here's an example:

http://lonestartimes.com/2005/10/31/identical-spin/

I'm really astounded.

For the record:

1. Terry and Tommy may be identical twins, but I'd wager 100:1 bet that, if you were to ask, "Terry, are you identical to Tommy?", Terry would say "no."

2. Even if Terry is identical to Tommy, that doesn't prove Tommy isn't identical to Tommy!

Bigoted assholes. They will get what they deserve with this law.

Tommy and terry sound like nice people and all, but they don't seem like a very good example. Tommy and terry are identical in a sense, but only in that sense. I would wager that identical might have a slightly more encompassing definition in the context of the written law than in the context of everyday usage. Besides, the law says "identical or similar". Even if tommy and terry aren't identical in every respect, they are undoubtedly similar.

excellent question. I'm sure we'll see.

Yeah but if it's an amendment I don't think they could find it unconstitutional.

That's right Mojo - if it is an amendment, it is by definition constitutional. The court will have to decide what it will mean.

If this is true, and is interpreted that way in the courts, I think it's a great first step toward marriage reform, and I hope that more states go into this direction. Marriage shouldn't have anything to do with the government. If people want to get married, they should recieve no special benefits whatsoever. Now, all we need is to have hospitals relax visitation policies and we will be totally on the right path.

While I might agree that marriage shouldn't have anything to do with the government, I'm not sure that this was "a great first step". If you don't want marriage have anything to do with the government, a great first step would be eliminating marriage from government oversight rather than restricting marriage rights to a particular group.

But, that is exactly what the citizens of Texas have done! They have banned Texas from recognizing any arrangement identical or similar to marriage.

Do you think that the change to the state constitution will actually have this effect? I don't.

You notice that I said if the interpretation given above was true, it's a great first step. The interpretation given above was that all marriage was banned.

And as for the "restricting marriage rights to a particular group" the OP said he didn't want to discuss gay marriage here, so I will leave that alone.

I cannot think of any other fair way to deal with the interpritation of a constitutional amendment.

If the wording is explicit, you follow the wording. Only if the wording is at all ambiguous and doesn't cover explicitly should they fall back and look at "intention".

For example, the non-explicitly enumerated rights in the US constitution (which are mentioned) are explicitly reserved for either the states or the people. For which they are reserved for is something a court could look for the intention of the authors.

However, someone who walks into the voting booth with nothing other than a firm grasp of the english language should have some hope of understanding what they are voting on. This change quite explicitly states that the state of texas will not legally recognize anything identical to marriage. There are no fancy lawyer wordings going on -- it says it in plain english. The courts should respect the wishes of the 74% of Texans who said "yes" to this, and give them exactly what they asked for.

Anything else is applying a judicial veto to the actual content of the constitution. Judges can overrule laws based off the constitution, but giving judges the right to say "this part of the constitution is dumb, we will ignore it" is blatantly overstepping the power of a Judge.

The people have spoken. If they didn't mean what they said, it is up to them to correct it, not up to judges to second guess them.

Ultimately, time will tell. There's no point in discussing it much.

Well said Yakk. To me, the most delicious part is that, as an amendment, this IS the constitution now. I don't think the judiciary can overrule an amendment, because it is by definition constitutional. This could get very interesting...

All of this speculation is fun, but means nothing, and is mostly wishful thinking based on a desire for retribution on the unwashed, ignorant, bigoted masses of Texas who dared tell the king he had forgotten his trousers.
The amendment passed, its intent sufficiently well-documented that even the 9th Circuit Court would be at odds to rule that it meant anything other than defining marriage as between one man and one woman.

My bad. I agree with you. Given the interpretation above, it's a great first step.

True in theory, but I still think it's unlikely to be interpreted by the courts as outlawing heterosexual marriage.

here's a link to a pdf of the atty gen opinion interpreting the language, prior to the election. (it comes from a site supporting one side, but found it on a search-not propoganda, but a legitimate document written by the atty gen, so it is some authority until ruled upon by a court.)
http://www.texansformarriage.org/doc...sition%202.pdf

yes, whoever drafted and proofed this should be fired, but no, Texas did not ban marriage.

the whole thing is stupid, and yet another reason I have become disillusioned with politics.

I was under the impression that the Attourny General of Texas was a partisan, elected, political office? The opinions of a political figure on a matter of politics should be assumed to be political opinions, not expert opinions.

Note that the constitutional amendment, as written, does not ban marriage -- it simply prevents the state of Texas from recognizing the state of marriage. Removing marriage from the domain of the state is one way of protecting it. This is not inconsistent with the legislative history.

Not taking the word of the constitution as their guild would be legistlating from the bench. It isn't the job of the judges to say "they didn't mean to write what they wrote, because that would be stupid. We'll pretend they wrote something that makes sense".

Are you proposing that if a constituation amendment that stated
"Blue is Blue."
if it contained a legislative history that indicated that the purpose of the amendment was to ban any party other than the democratic party from holding office, that the judges of the state should ignore the text and follow the nebulous "legislative intent"?

The intent of a law should not trump the text of a law.

If the amendment was ambiguous, then the judge should examine legislative intent to determine what is going on, and where the boundries are.

In what way does marriage differ from marriage? Where is the ambiguity that the judge should clear up? Should the judge simply rewrite the law as idiotic and make up new legislation, and pretend that the state passed that amendment instead of the one they did pass?

Marriage is quite clearly identical to marriage. As such, Texas may not recognize marriage, or Texas may cease to pretent to be a constitutional republic.

I'm certainly not trying to defend it, but...
yes, the atty gen of tx is elected, but so are tx sup ct justices. That doesn't prevent legal weight from being given to what they write. Usually, people ask for an atty gen opinion to cover their ass or tell them how to proceed if they are doing something that is not clearly legal and has not been addressed by any appellate court. If later they are sued, they can say "But see here, the atty gen opined that it was okay." Atty gen opinions are "persuasive authority" Frankly, this letter should not be considered an official atty gen opinion, as it it is not formatted as such. But you can bet what his official opinion would be.

ps. i havent been around much for awhile, but I did donate plenty... what does it take to be tagged as such?