Wednesday, October 26, 2005

Analysis of Texas Marriage Amendment

This whole banning all marriage thing in Texas is picking up steam, and controversy. It's now a for-real factor. My attitude toward it thus far has been mostly one of ironic amusement (partially out of self-pleasure at the thought of having been the first person ever to notice this bit of idiocy), but that's consistent with my thinking it's really a big deal. (In some respects, I'm much more ironically amused about life in general than some people realize.) So here's a serious post about a serious worry that social conservatives should have about this amendment. I have to admit, I'm a little bit surprised that now that it's gotten some public exposure, it hasn't gotten a lot of public grip. The Volokh Conspiracy has a long thread full of comments debating how big a concern this is, with an apparent majority in the "oh please, just relax about it" crowd. Focus on the Family has two warnings about liberal groups who are lying to voters, attempting to trick them into thinking the amendment would call for the end of formal legal recognition of all marriages. They do not engage -- or even mention -- the textualist argument in question, and they strongly insinuate, but do not literally claim, that the people talking to the voters about this are lying about their identities, a claim that has been denied in the Houston Chronicle. Even Charles Kuffner, my former MOB colleague and liberal Texas blogger extraordinaire, writes: I don't buy it and I don't think the voters will, either. Conservative blogger extraordinaire Jeremy Pierce wrote in a comment to my last post on the topic, the most plausible way to read this is clearly not taking 'identical' to mean strict identity but to mean "exactly similar but distinct from. I think that everybody is under-reacting. Here are some facts that seem both important and obviously true: Marriage is, among other things, a legal institution. A legislature could pass a bill or a joint resolution that would end and prohibit the legal institution of marriage. If a legislature were to do such a thing, the relevant statute would include at least two parts: a definition of marrage and a statement to the effect that marriage has no legal status. This is exactly how the proposed constitutional amendment is structured. So, the text of the amendment unambiguously ends state recognition of all marriage in Texas. It is exactly the amendment that someone would draft who wanted to abolish marriage. Now, another important question: how serious is the risk that if the amendment passes, courts will interpret it as striking down even traditional marriage? I don't really know. Probably not huge. But look at what this move amounts to: we're trusting the judges to interpret the amendment the way it was intended. I thought the whole reason people wanted a constitutional amendment was so that we wouldn't be at the mercy of judges with respect to important things like the legal status of marriage. That's why the fact that marriage is already defined as a union between one man and one woman in the Texas Family Code (along with judicial precendent a mile long to back it up) isn't good enough. The amendment leaves marriage more vulnerable than ever -- if what we're really worried about is judicial activism, then we're just inviting the judicial activists to come in and read this text as saying what it is obviously literally saying, and presto, the entire legal institution of marriage in the state of Texas has been destroyed.


  1. This is hilarious.

    I'm one of those people who thinks the gay marriage debate should be resolved by making civil unions the only recognized union, and letting marriage be a religious issue. Maybe the way to do it is to get a bunch of like-minded folks to infiltrate congressional offices in low-level bill-writing positions, to turn out things like this that no one will catch.

    That plan would also refute "originalist" arguments, since elminating the legal status of marriage would indeed be the original intention of the person who wrote that language.

  2. There was a news brief on this on 740 KTRH this morning. The reporter commented that people opposed to prop. 2 were pointing to the flaws in the wording, while those people in favor of prop 2 were telling people to read it and interpret it for themselves. I found this interesting.

  3. That is indeed interesting. Two immediate thoughts: (1) that's the reverse of what was happening when this first picked up steam. Supporters were saying, "there's a deceptive group out there, don't listen to them," and opponents saying, there's a serious problem, look at the text for yourself. (See the links in this post.) Everyone who raises this argument against the amendment points to and quotes the specific text.

    (2) the text is clear, and it provides a good reason for everybody to reject the amendment. Why would supporters encourage people to go look at the text? Do they think they won't actually do it?

  4. I don't know. A spokesperson for one of the groups for prop 2 had a soundbite on the news where she encouraged people to read it and try to see how they think a judge would interpret it. She said that by reading it people would find that judges would understand that it wasn't meant to ban marriage between a man and a woman.

  5. Well, the vote is today. I'll keep you posted.

  6. 70 something percent voted for Prop 2

  7. I'm very, very cross with 70% of the people who voted in Texas yesterday. They deserve to have their marriages destroyed. I cannot tell you how thrilled I would be if Jon was right and some judgifying went down that brought down marriage. I'm feeling very retributivist today.

  8. I think you are misconstruing the juxtaposition in the statute. Legal language has a problem with making little sense sometimes, but you have to consider this provision with the other subsections. HJR6 specifically defines marriage first. This presupposes the state's recognition of marriage. The second subsection deals with whether the state can recognize other unions not fitting this definition as marriage. Fundamentally, the amendment only recognizes one kind of marriage, between a man and a woman. Just wait, after recent Supreme Court decisions, I don't expect these laws and amendments to stand under due process, but we have to wait and see.

  9. Johnathan, this is a response to the comment you left on my blog that delves more specifically into the the way the language works, and also demonstrates that my blog post on this issue is not misleading.

    Lets take a walk down statutory interpretation lane. This usually makes little sense to those who have not had any exposure to the way legislatures write laws. It doesn't necessitate legal training, but you have to realize that much of the language is passive voice, and underinclusive. So lets disect the language.

    Section 32, subpart (a), states, "Marriage in this state shall consist only of
    the union of one man and one woman." This clearly defines marriage, and leaves no question as to how the state will continue to define marriage in the constitutional context.

    Section 32, subpart (b), states, "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage." This part states what jurisdictions may not do. The important thing here is the juxtaposition of language which I believe everyone is getting hung up on. Jurisdictions within the state may not recognize or create any legal status identical or similar to marriage. This language presupposes that marriage already exists in the form defined in subpart (a), and then specifically forbids any jurisdiction in the state to modify or otherwise alter what they recognize as marriage.

    The definition comes first to lay out what is permitted. After the definition, subpart (b) then specfically states what is not allowed. The fact that marriage is referred to in subpart (b) on its own, standing freely, indicates that it relies on the definition of subpart (b). The modifying language before it, "identical or similar", indicates that states may not recognize any other legal union other than the constitutionally defined union in subpart (a). I reiterate my point that this amendment does not mean the end of all marriage, just the end of any jurisdiction recognizing anything other than the constitutionally defined union of marriage. Precisely what my post discussed.