Will Texas Ban All Marriages?:
According to the Houston Chronicle, a proposed amendment to the Texas constitution would forbid the state from "recogniz[ing] any legal status identical or similar to marriage." Proponents of the amendment say they only want to ban same-sex marriage, not all marriage. Any thoughts on how a strict constructionist would read the language? Thanks to Mark Yzaguirre for the link.
Per Son:
I think we know the answer. What is the rest of the language.
10.25.2005 12:59pm
Goober (mail):
I think even Scalia-type strict constructionists allow for the correction of scrivener's error, and it's a perfectly fine doctrine that you interpret a document so as not to make it absurd. (The latter is usually applied to contracts and other private law docs, but still.)

So... it's an interesting thought experiment, but I don't think anyone's marriage is in any trouble.
10.25.2005 1:05pm
Of course, it would not be "absurd" for the state to get out of the business of providing a special legal status to marriages, so I don't think one can use that argument.
10.25.2005 1:09pm
Houston Lawyer:
The text which appears on the ballot is:

"The constitutional amendment providing that marriage in this state consists only of the union of one man and one woman and prohibiting this state or a political subdivision of this state from creating or recogizing any legal status identical or similar to marriage"

This tracks almost word-for-word the language of the actual amendment. The first part of the sentence defines what a marriage is and the second part says that it can't be anything else. A prohibition on recognizing or creating something identical to something surely doesn't abrogate the original.
10.25.2005 1:09pm
Anderson (mail) (www):
Do we need to consider a status almost, but not quite, entirely unlike marriage?
10.25.2005 1:09pm
maggie was right after all...
10.25.2005 1:13pm
Houston Lawyer,

Actually, the contrary reading seems perfectly straightforward. First you define marriage, and then you say the state can't create a special legal status "identical" to marriage (which would be a special legal status based on "the union of one man and one woman"), nor to anything "similar" to marriage (which is more open-ended, but might include unions between one man and one man, one woman and one woman, two men and one woman, and so forth).

In other words, once you have defined marriage, doesn't saying that the state can't provide a special legal status "identical" to marriage apply to that exact definition?
10.25.2005 1:15pm
Except the word "special" isn't in there anywhere. The question is, does a "legal status identical to marriage" include marriage?
10.25.2005 1:31pm
Cornellian (mail):
I think should this amendment pass that Texans are going to get a lesson in the law of unintended consequences. I suspect most people voting in support of the amendment are doing so on the impression that everything will remain the same as it is now, except that gay people can't get married (to each other at least). However, giving courts wide open authority to strike down any legal relationship "similar" to marriage invites attacks on any number of things now regarded as innocuous.
10.25.2005 1:34pm
Per Son:
The constitutional amendment providing that marriage in this state consists only of the union of one man and one woman and prohibiting this state or a political subdivision of this state from creating or recogizing any legal status identical or similar to marriage

Much to do about nothing. It is quite clear that "identical" does not include actual marriage, which is defined. However, this is not a scrivenor's error, rather, it is simply bad drafting. Think of identical twins Mr. B and Mr. C. Mr. B is identical to Mr. C, but Mr. B is not Mr. C.
10.25.2005 1:41pm
Shawn (mail):
Texas has common-law marriages. It is arguable that these will be invalidated. Also, will contracts designed to imitate marriage benefits be invalidated? For example, if two gay men sign a mortgage in joint, fill out powers of attorney, etc in an attempt to frame a marriage-like set of contracts, what happens to them?
10.25.2005 1:42pm
ross (mail):

Here's an explinantion supplied by LGRL of Texas

Proponents of Proposition 2 keep telling us it would protect traditional marriage by writing into the Texas Constitution a prohibition on marriage and civil unions for same-sex couples, but it actually does much more – if passed it annuls ALL marriage in Texas, even for heterosexuals.

That’s because the language that would be written directly into the Texas Constitution if this passes is flawed.

Don’t take our word for it, read the language for yourself:

Article I (The Bill of Rights), Texas Constitution, would be amended 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.

By leaving out key words, legislators are invalidating all marriage!

The language is clear:
(a) defines marriage between one man and one woman, and
(b) prohibits the recognition of (a)

Therefore prohibiting marriage between one man and one woman!

Legislators in other states that have passed similar amendments got it right, when trying to prohibit marriage between same-sex couples. They included key language that clarifies marriage between one man and one woman would still be recognized:

For example, in Utah, they defined marriage as between one man and one woman, and then said, "NO OTHER domestic status or union, however denominated, between persons is valid or
recognized or may be authorized, sanctioned, or given the same or substantially equivalent legal effect as a marriage."

In Kentucky, the language read, “A legal status identical or substantially similar to that of marriage FOR UNMARRIED INDIVIDUALS shall not be valid or recognized."
10.25.2005 1:43pm
I love this quote:

"That in the hands of an activist judge could lead to the ruin of my marriage and every other marriage in this state because the status that is most identical to marriage is obviously marriage itself,"
10.25.2005 1:46pm

"Special" is indeed my own addition. What would turn on its absence is (perhaps) whether the state could enforce marriage-like contracts simply as contracts, rather than under a special category of law.

But holding that issue aside, there is no necessary confusion about what "legal status identical to marriage" might mean once you realize that a marriage can exist without legal recognition. In other words, I'm not talking nonsense if I propose something like, "Marriage should only be a religious and/or private institution, and the state should not create or recognize any legal status identical or similar to marriage."
10.25.2005 1:49pm
Sigivald (mail):
Shawn: Why would common-law marriage be invalidated? That would still be the stated "union between one man and one woman"; note that the language there doesn't indicate how the union comes about, just what it consists in.

And while IANAL, I'm pretty sure that a joint mortgage, power of attorney, and other set of contracts would not constitute "a legal status" (as an entity), such as could be compared to marriage. It seems difficult on the philosophical level to make a heterogenous set of contracts that approximate some of the benefits of marriage equal to "a legal status". Marriage is a defined legal status, that has specific legal benefits that apply to it. Emulating parts of that is not the same as being the status (or equivalent to it); the status is part of the laws, not the existence of contracts that may provide similar benefits.

(If I could find a clearer way to put this, I surely would... the point is that, as I see it, the "legal status" thing refers to the laws themselves, and the emulation of benefits via private contract doesn't seem to obviously relate to that, from a constructionist view. I'm not sure what view one would have to have to consider the two equivalent, but constructionist I'm pretty sure it ain't.)
10.25.2005 1:50pm
Bruce Wilder (www):
Marriage is as defined, and marriage, as defined, cannot be given any legal status.

Seems perfectly clear.
10.25.2005 1:57pm
Nikki (www):
This link explains the perceived risk to Texan common law marriages, and points out that same-sex marriage is already illegal in Texas.
10.25.2005 1:57pm
Houston Lawyer:
All Texas judges are elected officials, which has really become a sore spot with many Democrats here since the Republicans became a majority. I feel completely comfortable that Nathan Hecht &Co., as well as their eventual successors, will interpret the constitution the way the drafters intended it to be interpreted.

The Texas legal structure was implemented following Reconstruction, when many people were disenfranchised based upon their armed rebellion against the United States. Once Federal occupation troops were withdrawn, measures were taken, such as limiting the legislative terms to 140 days every other year, to limit the power of elected officials to stir up mischief against the will of the people. Given the policital consequences of arguing that a measure meant to preserve marriage actually abolished it, I'm certain that no elected official would make such a ruling.
10.25.2005 1:57pm
Per Son:
Houston lawyer must agree with Breyer's new book, Active Liberty and not Scalia's, A Matter of Interpretation. I say this because, Houston is arguing that it is a good thing that judges will apply a purposive/pragmatic interpretation that effectuates the will of the people. And I thought Conservatives are against such reasoning?

A similiar unintended consequence occurred in Ohio. After the amendment was passed, non-married domestic abusers could not be charged with domestic violence. The result was that boyfriends were charged with domestic violence for beating their live-in girlfriends, had a defense built into the State Constitution. Here is the amendment:

"Article XV Section 11. Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."

Here is a news exerpt on the Judge's decision:

"Because Ohio's domestic violence law recognizes the relationship between an unmarried offender and victim as one 'approximating the significance or effect of marriage,' it represents a direct conflict with the amendment's prohibition against such recognition and is thus unenforceable.

What this means:

"In the case involving Frederick Burk of Cleveland, who was arrested in February on a charge of domestic violence against a woman [not his wife], Friedman reduced that charge (a fourth-degree felony with a possible prison term of six to 12 months) to simple assault (a first-degree misdemeanor with a maximum six-month jail term)."
10.25.2005 2:08pm
Gary McGath (www):
Marriage is identical to marriage. That's simple logic.

If the "intent" rather than the actual wording of the amendment is what counts, then it's necessary to figure out the contents of the mind of someone who can't write simple English. Would it outlaw common-law marriages? How can anyone tell?

The people supporting this ludicrous amendment are saying it would take an "activist judge" to reach this conclusion. Funny, yesterday an "activist judge" was someone who ignored the actual meaning of the law and decided what it really should mean.
10.25.2005 2:34pm
Brian Watkins:
Here's the text of the Honorable Marilyn Musgrave's first proposed Federal Marraige Amendment from the 108th Congress (this version attracted 120+ cosponsors).

SECTION 1. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups

Note that it prohibits the issuance of any state marriage licenses.

The root or this trouble was a folk-constructionist distinction between strict text and construction of the text.
10.25.2005 2:36pm
Gary McGath (www):
Response to Per Son, on the use of "identical":

The term "identical twins" does not mean that the twins are identical persons. This is a special usage of "identical," not the normal meaning. The word, in connection with twins, means that they were born with identical genetic material. In normal usage, "identical" means "the same in all respects." Thus, the "identical" part of the amendment could only be applied to a relationship which is the same in all respects as marriage -- i.e., specifically and exclusively to the union of one man and one woman.
10.25.2005 2:42pm
Maybe Houston Lawyer's point is that it is OK to be an activist judge if you are an elected judge.
10.25.2005 2:45pm
Joshua (mail):
And to think that the real coup de grace apparently hasn't even occurred to anyone here yet:

A same-sex coupling obviously does not fit the definition of marriage in part (a) of the proposed amendment. As for part (b), SSC is obviously not "identical" to that definition either, and it's arguable at best as to how "similar" it is.

In other words, this amendment could very well be interpreted not only as abolishing all legal opposite-sex marriages, but at the same time leaving the door open for same-sex ones! It's like using a nuclear bomb to kill a cockroach - and the cockroach ends up surviving anyway.
10.25.2005 2:55pm
Houston Lawyer:
Conservatives are in favor of applying the meaning afforded to a text by those who actually adopted or wrote it, not some future wish for what that something should have meant. Interpretation requires giving meaning to all of the text, not just the portion that suits you. If the amendment prohibited recognizing the legal status of marriage or anything similar or identical thereto, we would have a problem, but that's not what it says.
10.25.2005 3:01pm
Bryan DB:
Per Son,
I don't think your analogy of Mr. B and Mr. C is quite on target. If we assume that Mr. B and Mr. C each have a conscious mind, then clearly B is not C. However, if we go to the level of DNA (assuming no replication errors, etc), which is the level of abstraction most equivalent to the words of a law, then Mr. B *is*, in fact, Mr. C, because they are of identical composition. So, too, a legal status identical to marriage is marriage.
10.25.2005 3:09pm
I think there can be little dispute that same-sex marriage is, in fact, similar to marriage.
10.25.2005 3:11pm
Joshua (mail):
Ah, but there's no guarantee that court cases or appeals involving this amendment will always be presided over by judges who harbor such a conservative philosophy. It only takes one wayward precedent-setting interpretation to effectively change the meaning of any given law or constitutional provision, but it doesn't necessarily take an activist judge to make such an interpretation.
10.25.2005 3:13pm
Houston Lawyer,

Actually, aren't you saying the opposite? You are arguing that no matter what that text actually means if taken literally, it should be defined according to "what that something should have meant" according to the "wish" of those voting for it.

And your proposed contrast is obviously redundant: if you prohibit recognizing the legal status of marriage or anything similar, you have already prohibited the legal status of anything identical to marriage. That is what is so odd about this language: if you only want to prohibit legal recognition of things that are merely similar to marriage (and by the preceding definition something like a union of a man and a man or a woman and a woman could never be more than similar but not identical to a marriage), then why are you also prohibiting legal recognition of anything "identical" to a marriage?

Frankly, without extrinsic evidence, it seems obvious to me that the best interpretation is that this language seeks to prohibit legal recognition of marriage or anything like it.
10.25.2005 3:16pm
Joshua (mail):
To clarify: My previous post was a response to Houston Lawyer. Now, here's a response to Steve:

I think there can be little dispute that same-sex marriage is, in fact, similar to marriage.

Not by the definition given in the amendment, it isn't. In fact it's precisely the opposite of the definition in the amendment. And in any event, the first time a case involving this amendment ends up in court, it's a good bet that the plaintiffs (presumably the side in favor of legal SSM) will make the very argument that SSM doesn't fit the definition of what the amendment outlaws.
10.25.2005 3:21pm
Houston Lawyer,

Some conservatives rely on original intent or understanding. Others rely solely on the text.
10.25.2005 3:44pm
ross (mail):
If you wouldn't mind what logical and simple reasons would there be to vote FOR:

Obviously AGAINST: Status Quo
10.25.2005 3:45pm
Bemac (mail):
"Nothing in this Constitution shall require the state or any unit thereof to recognize as marriage anything other than the union of one man and one woman."

I'm not a lawyer, but I like my version better.

It seems to me that my language takes the courts and creative executives out of the process and puts it in the laps of the legislature.
10.25.2005 4:28pm
Monkberrymoon (mail):
Houston's point is purely practical. When it counts, no appellate panel, and certainly not the Tx SCt is going to declare marriage nonexistent. Even if one district judge (that's trial level) did, it would be essentially meaningless, except to make him or her look like an idiot. No other judge would follow that ruling (one district judge doesn't bind another in Texas), and it would be overturned. Even if it wasn't appealed, district court decisions in Texas are almost never published (and rarely written out in opinion form) -- so I don't see a problem.
10.25.2005 4:37pm
Per Son:
Again, the point is that Houston and others are arguing that pragmatic interpretation is a good thing, even if it means going against the actual text. His post was not just "practical," but expressing encouragement and delight that judges will go apart from the text and decide on results.
10.25.2005 5:22pm
Marijuana is defined as any substance, ester, or salt containing DTHC.

NO Person may possess any substance similar to or identical to marijuana.

This is a common construction of statutory language; a term is defined, and then prohibited.

How is the Texas amendment any different?
10.25.2005 7:06pm
The activists who wish to derail this amendment are so pathetic in this attempt to derail an amendment which would pass with supermajority support, that they are grasping for straws. These fools really should take a lesson in Statutory and Constitutional Construction.

Here are just a few quick examples from both Statutory law and Case law in reference to the proper Construction of texts:


§ 1922. Presumptions in ascertaining legislative intent.

In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:

1. That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.
2. That the General Assembly intends the entire statute to be effec- tive and certain.
3. That the General Assembly does not intend to violate the Con- stitution of the United States or of this Commonwealth.
4. That when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language.
5. That the General Assembly intends to favor the public interest as against any private interest.

In interpreting a statute, this Court's primary function is to ascertain the intent of the legislature. E.g., State v. Ramsey, __ S.C.__, 430 S.E.2d 511 (1993). Of course, where a statute is complete, plain, and unambiguous, legislative intent must be determined from the language of the statute itself. E.g., State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991 ). We should consider, however, not merely the language of the particular clause being construed, but the word and its meaning in conjunction with the purpose of the whole statute and the policy of the law. E.g., South Carolina Coastal Council v. South Carolina State Ethics Comm'n, 306 S.C. 41, 410 S.E.2d 245 (1991).

"The plain, obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained construction; a statute should never be construed so that it leads to absurd results." Willis v. Commonwealth, 10 Va. App. 430, 441, 393 S.E.2d 405, 411 (1990)

“Statutes must be construed logically so as not to produce an absurd result.” In interest of M.Z., 472 N.W.2d 222, 223 (N.D. 1991)

“‘an interpretation is preferred which favors the public. A narrow construction should not be permitted to undermine the public policy sought to be served.’ Estate of Thompson, 586 N.W.2d 847, 849 (N.D. 1998) (quoting 2B Norman J. Singer, Sutherland Stat. Constr. § 56.01 (5th ed. 1992)

Now, for the Coup de grace. Here is the Texas Government Code on Statutory Construction:

§ 311.023. STATUTE CONSTRUCTION AIDS. In construing a
statute, whether or not the statute is considered ambiguous on its
face, a court may consider among other matters the:
(1) object sought to be attained;
(2) circumstances under which the statute was enacted;
(3) legislative history;
(4) common law or former statutory provisions, including laws on the same or similar subjects;
(5) consequences of a particular construction;
(6) administrative construction of the statute; and
(7) title (caption), preamble, and emergency provision.

Acts 1985, 69th Leg., ch. 479, § 1, eff. Sept. 1, 1985.

In Texas, Constitutional Construction is generally governed by the same rules as those governing the interpretation of statutes and codes. See: Booth v. Strippleman, 61 Tex. 378 (1884)

So, using section 311.023, it is quite easy to construe the amendment in the way in which the legislature of Texas intend, and not the absurd way in which the activists are trying to imply.
10.25.2005 11:51pm
Per Son:

Thank you. You have proved my point. The text is unambiguous, but through use of extrinsic aids, you can achieve its true meaning. Just so you know, Scalia never thinks you should use legislative history and nthe object sought. Rather, you should just use the text.

My point is that Conservatives aren't so textual are they?
10.26.2005 1:04am
Monkberrymoon (mail):
A few points:

1) I agree that it's unambiguous, but that's because I think it unabmbiguously prohibits recognition of marriage-like legal status of unions which do not comport with the definition of marriage.

2) Even if it were ambiguous, it doesn't matter what Scalia would do about it (or indeed, any conservative). Texas law specifically allows for examination of legislative history when the text is ambiguous (or when application of the text would lead to an absurd result). It's irrelevant, therefore, what either a "liberal" or "conservative" canon of statutory construction would entail.

3) No judge in Texas will ever hold that either the statute is ambiguous or that it clearly prohibits marriage of any kind. It just won't happen.

4) It's not clear that even a Scalia would read the constitutional amendment to prohibit marriage. In "A Matter of Interpretation" he writes approvingly of divining the "objective import" of a statute and giving the "totality of context precedence over a single word." (pp. 20-21). In this case, any possible ambiguity could be resolved by simply placing "other" in between "any" and "legal status". And the "objective import" of the statute cannot be to make all marriages illegal.
10.26.2005 12:08pm
Houston Lawyer:
When I got home last night I had a message on the answering machine claiming to be from a preacher who was afraid that the constitutional amendment would abolish marriage in Texas. He claimed that all married couples would lose numerous types of rights and financial benefits and said we should vote no on the constitutional amendment.

He was not preaching to the choir.
10.26.2005 1:35pm
Cornellian (mail):
Conservatives are in favor of applying the meaning afforded to a text by those who actually adopted or wrote it, not some future wish for what that something should have meant. Interpretation requires giving meaning to all of the text, not just the portion that suits you. If the amendment prohibited recognizing the legal status of marriage or anything similar or identical thereto, we would have a problem, but that's not what it says.

Where might these conservatives be hiding? The ones in Washington managed to reconcile the original intent of the Commerce Clause with their position that growing marijuana in your own backyard for your own personal use constitutes interstate commerce. Heck, even Scalia went along with that so I suppose he's not a conservative - not a single reference to original understanding in his entire opinion.

I notice Congress with that recently enacted legislation to shield gun manufacturers managed to "find" all kinds of things about the meaning of the Second Amendment, again without troubling themselves to inquire as to whether that was consistent with the original understanding of that amendment. I don't recall seeing a single reference to original understanding in the entire statute, just a list of declarations about what the current Congress thinks the second amendment means (i.e. would like it to mean).
10.26.2005 11:24pm