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Did Texas ban marriage?
A Democratic candidate for attorney general thinks so. In poring over the state constitution in preparation for her campaign, Barbara Ann Radnofsky said she took another look at the constitutional amendment that banned gay marriage and found an unintentional result.
The amendment says that “marriage in this state shall consist only of the union of one man and one woman.” But it goes on to say, in Subsection B, “This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.” That subsection was supposed to ban all same-sex domestic partnerships and civil unions, but Barbara Ann Randonfsky says it “eliminates marriage in Texas.”
She holds the current attorney general, Greg Abbott, responsible. His office said it stands by the amendment. Kelly Shackelford, president of the Liberty Legal Institute in Plano, said, “It’s a silly argument.”
back to top27 Comments to “Did Texas ban marriage?”
I think the argument is silly, too. That sentence is clearly saying that you can’t create or recognize something identical or similar to something that exists — marriage!
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It’s a literal reading of the statute, to be sure.
But I thought we liked literalism!
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By itself, Subsection B would ban marriage but clearly the amendment consists of more that Subsection B and Ms. Radnofsky knows that.
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An entire state “living in sin?”
When I was a child, one of my best friends’ mother was from Texas. I asked her, “Why are Texans always so proud of their state? Why are you living in California?”
Her answer, with a snicker, “Texas is a good state to be from.
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“It’s a silly argument.
Depends which court you appeal it to.
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Thomas1 #2
There is a difference between literalism and letterism. Literalism looks at a document seeking to discover the real intent of the author. We do that in most things. Like a stop sign on a corner. We stop our vehicle and look before we proceed, just like the people who put the sign there intended.
Letterism pays more attention to the specific words used and gives less regard to the original intent and context. Letterism looks at the stop sign and tells everyone in the car to quit breathing, talking, moving, and waits for someone to bring along a start sign. Letterism is the basis for much humor, such as this Texas marriage joke.
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Barbara Ann Radnofsky is reaching for something that is not there. Why? she needs the money from the GLBT Community to try an win.
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#6 Fisherman:
Ah, but what if the framers intended for it to be a living, breathing statute?
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“Literalism looks at a document seeking to discover the real intent of the author.”
This is an idiosyncratic use of the word and not at all consistent with its general use!
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No, I think that if you read it literally it’s still a silly argument. Literally, I don’t think we understand things as being identical to themselves. That’s not how English works.
I think that straight people in Texas are still at risk. It’s a dangerous amendment for wills and other contracts between people not married trying to arrange lives together.
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And you’re thinking the legislative history and intent was to ban marriage? Really?
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My description in #6 is the general understanding in my sphere of study. Literal is used in contrast to allegorical, metaphorical, mystical, etc. Literal interpretation looks at the usual, normal, contextual intent of an author. People who desire to disagree with that normal way of interpreting written documents tend to malign literalism by describing it as letterist.
i.e.: A document written as an allegory is to be literally interpreted as an allegory.
Literal interpretation is a real challenge while reading whatever we want (including literalism) into a document is quite simple but fundamentally mistaken.
i.e.: What did the the Texas Legislature intend with this marriage ammendment? The normal, contextual intent is clearly to limit marriage to one man and one woman. That is the literal interpretation. Some who want to disagree with that interpretation have found a place where they can read into the language something that they believe advances their position but is clearly contrary to the intent of the authors.
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#7 You have it absolutely correct. Blatant pandering at its best.
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Our high school English teachers told us that poor writing is usually a sign of bad thinking. Looking at Subsection B, I have to give mine their due. What makes Texas think that it can forbid equal protection of law and not consider any provision for equity? Bad thinking, that’s what. Maybe bad people, too.
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Whether or not “literalism” and “letterism” are the right words, I like the distinction Fisherman made. His mention of the stop sign reminds me of a scene from “Rain Man”.
The autistic character, Raymond, tries to cross the street at a traffic light. When he’s part way across, the signal starts flashing “Don’t Walk”. He stops walking each time “Don’t Walk” flashes on, then takes another step when it flashes off. When it goes to a steady “Don’t Walk”, he’s stuck in the intersection, leading to the predictable horn-honking and insults.
There’s letterism for you.
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Radnofsky only opened silly season a little early in Texas politics hoping to embarrass her possible opponent. Mistakes like this are not all that uncommon and usually corrected with little fanfare.
NJL is exactly right. IF any judge would seriously consider lawsuit challenging this, he would look at the legislative intent including the original wording, amendment, pro and con memos, as well as the plain meaning. It’s simply one of those “weird-but-true” stories.
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Ah, but let enough time pass (insert our Constitution here) and some dimwit will reinterpret the statute and challenge it and you never know what will happen.
Precision is necessary in writing and interpreting the law.
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NANA IF any judge would seriously consider lawsuit challenging this, he would look at the . . [etc.]
A judge could look at Subsection B and refuse to strike down civil unions in Austin, TX (for example) because the wording is too confusing to be binding. A judge could strike down the entire subsection. I agree that judges wouldn’t grant gays a marriage license against the intent of a defective statute, however bad the syntax. But there certainly are judges who would stop Texas from enforcing a sloppy statute against a city or county.
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“An entire state ‘living in sin?’”
Luckily, marriage is a covenant before God. (And no, I’m not talking about the state.
)
You’re all treating this as a ridiculous outcome: why? I’ve yet to hear a reason why the state needs to have its fingers in marriage.
It would certainly solve the whole gay marriage issue.
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I am from Texas. I know the one thing that Texans really dislike is some fancy pants from DC telling them how to run their lives. Laws in Texas are approved and repealed by Public referendum. There is a reason that the Texas Constitution approved by the Supreme Court in 1879 allowing Texas to re-enter the Union after the era of Radical Reconstruction was written specifying public referendum. It was because Congress in DC abused the clause in the Constitution that says in section 8 “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Personally, I think this candidate just torpedoed her chances of being elected to the office of Attorney General.
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“This is an idiosyncratic use of the word and not at all consistent with its general use! “
Sorry if you’ve never understand how this word is used. Discussion about the literal meaning of Scripture has always focused on authorial intent and has always recognized and accounted for figures of speech and metaphoric language.
“What makes Texas think that it can forbid equal protection of law and not consider any provision for equity? Bad thinking, that’s what. Maybe bad people, too.”
Equal protection only applies to access to the same thing. If you want to assert that a relationship based on homosexual sex is the same thing as a heterosexual marriage, you need to deal with anatomy, physiology, and thousands of years of civilization.
The phrase “identical to” requires a referent. That referent could not be precluded by the statement in Subsection B.
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Scroop, you could turn into a butterfly and we’d still be friends.
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btw, thank you KEN – I think.
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One way to consider this language is in light of the idea that individual marriages are not created or granted by the State, but by households.
The bridegroom has left his father’s household to take the daughter of another man’s household, which act forms a new household that was not previously there.
IOW, marriage is a Creation ordinance, not something created by the State.
What the whole homosexual marriage debate is really about is whether it is right for a political entity to lawfully recognize (and therefore, accord a certain legally-binding status to) sexually perverse relationships as “marriages.”
But the State does not create marriages — it only acknowledges and recognizes marriages that have been created by a man and a woman and their families (and, in the case of the religious, their church).
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Texans have shotguns and weddings. Any questions?
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KEN #21 If you want to assert that a relationship based on homosexual sex is the same thing as a heterosexual marriage, you need to deal with anatomy, physiology, and thousands of years of civilization.
So, you think I can’t do that?
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#25
How many people get shot at Texas weddings?
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