Yakk

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".)

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Last edited by JHVH : 10-29-4004 BC at 09:00 PM. Reason: Time for a rest.

Gatorade Frost

Holy crap.

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

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I got in a fight one time with a really big guy, and he said, "I'm going to mop the floor with your face." I said, "You'll be sorry." He said, "Oh, yeah? Why?" I said, "Well, you won't be able to get into the corners very well."
Emo Philips

n0nsensical

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.

denim

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

rsl12

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

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rsl12

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

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oh baby oh baby, i like gravy.

denim

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

stevo

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.

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"If I am such a genius why am I drunk, lost in the desert, with a bullet in my ass?" -Otto Mannkusser

Gatorade Frost

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.

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I got in a fight one time with a really big guy, and he said, "I'm going to mop the floor with your face." I said, "You'll be sorry." He said, "Oh, yeah? Why?" I said, "Well, you won't be able to get into the corners very well."
Emo Philips

rsl12

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:

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oh baby oh baby, i like gravy.

Paq

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

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Live.

Chris

Elphaba

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

politicophile

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...

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The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. ~John Stuart Mill, On Liberty

Min

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.

rsl12

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?

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oh baby oh baby, i like gravy.

Charlatan

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)?

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dksuddeth

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.

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"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

ubertuber

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.

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Cogito ergo spud -- I think, therefore I yam

martinguerre

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.

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martinguerre

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

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For God so loved creation, that God sent God's only Son that whosoever believed should not perish, but have everlasting life.

-John 3:16

Grasshopper Green

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...

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"They say that patriotism is the last refuge to which a scoundrel clings; steal a little and they throw you in jail, steal a lot and they make you king"

Formerly Medusa

pan6467

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.

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I just love people who use the excuse "I use/do this because I LOVE the feeling/joy/happiness it brings me" and expect you to be ok with that as you watch them destroy their life blindly following. My response is, "I like to put forks in an eletrical socket, just LOVE that feeling, can't ever get enough of it, so will you let me put this copper fork in that electric socket?"

Thucydides

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.

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"That to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed, That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

Mojo_PeiPei

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?

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asaris

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

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"The Germans believe that power must reveal itself in hardness and cruelty and then submit themselves gladly and with admiration[...]. They do not believe readily that there is power in meekness and calm."

-- Friedrich Nietzsche

Yakk

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.

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Last edited by JHVH : 10-29-4004 BC at 09:00 PM. Reason: Time for a rest.

rsl12

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!

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kutulu

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

filtherton

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.

stevo

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

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"If I am such a genius why am I drunk, lost in the desert, with a bullet in my ass?" -Otto Mannkusser

Mojo_PeiPei

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

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ubertuber

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

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Cogito ergo spud -- I think, therefore I yam

alansmithee

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.

sapiens

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.

Yakk

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

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Last edited by JHVH : 10-29-4004 BC at 09:00 PM. Reason: Time for a rest.

sapiens

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

alansmithee

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.

Yakk

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.

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denim

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

ubertuber

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...

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Cogito ergo spud -- I think, therefore I yam