Authors Of Texas Marriage Amendment: Who Barks The Loudest?

Right wing pundits are howling over my claim that a 2005 Texas constitutional amendment didn't ban gay marriage; it bans all marriage. The Constitution provides, in very clear language, that Texas "may not create or recognize any legal status identical or similar to marriage." In our justice system, when language is clear, the courts are not permitted to go behind the clear language to consider intent. It doesn't take an expensive law degree to understand what this clause means.

Bad lawyering caused the approval of Art. 1 Section 32 of our Constitution, which defines marriage in Section A and outlaws marriage in Section B. The clear language in B creates turmoil and breeds litigation. The solution lies in either a new constitutional amendment (our Constitution has hundreds of them) or massive judicial activism to take clear language and reword it. Ironically, the current Attorney General, who was in office in 2005 and asleep at the switch at the time of passage of Art. 1 Section 32, vowed this week to "continue to defend" the amendment. He emphasized that the constitutional amendment was "constitutional." This is a nonsensical approach: continue to defend the clear and constitutional language outlawing marriage.

The authors of the Amendment and their Attorney General protest too much in frustration about the clear language banning all marriages. Everyone in Texas knows that the guilty dog barks the loudest.

Of course, the solution lies in another constitutional amendment rescinding the outlawing of marriage. It is both bad lawyering and bad public policy to ask courts to step beyond their power and re-word an amendment voted on by the people of the State. The Attorney General seeks more than judicial activism, more than judicial legislation from the bench. The Texas Attorney General now puts in to the hands of Texas state court judges the job of rewriting the Texas Constitution.

The Attorney General of Texas has made many other mistakes of constitutional dimension. The website www.BarbaraAnn2010.com will be updated to reflect those mistakes as the campaign progresses. I will file for the office of Attorney General at the end of my announcement tour on Dec 3 2009.

 

Comments

[WhitneyKyle]

02:04 PM on 11/27/2009

The only solution Texas has to avoid countless legal questions and challenges in the future is to strike down this ammendment and start all over again. Any attempt to do this by other means would not have the legitacy of the referendum­. Neither the courts nor the Texas legislatur­e posess the legal authority to change the wording of an ammendment after its adoption by referendum­. It's the law as passed.

There is a huge and clear difference in meaning between what is written, "may not create "OR" recognize" and the intended meaning of "may not create "AND" recognize" in the context of the sentence. Its almost like the lawyers who crafted this law intended to revisit this battle and created a loophole to ensure it would.

[JeffreyinRO]

07:21 AM on 11/23/2009

What if the Texas constituti­on had these amendments­:

Art. 1 Sec. 32. SAME-SEX MARRIAGE. (a) Same-sex marriage in this state shall consist only of the union of two people of the same sex. (b) This state or a political subdivisio­n of this state may not create or recognize any legal status identical or similar to same-sex marriage.

Is same-sex marriage legal or illegal?

Art. 1 Sec. 32. POLYGAMY. (a) Polygamy in this state shall consist only of the union of three or more persons. (b) This state or a political subdivisio­n of this state may not create or recognize any legal status identical or similar to polygamy.

Is polygamy legal or illegal?

[Anne Johnson]

07:10 AM on 11/23/2009

If marriage is between a man and a woman only, then doesn't that mean that any tax deductions given to married couples should be eliminated­? Why should one group that is not legally allowed to get married have to pay more in taxes than those who can marry? Doesn't it make tax laws as they relate to marriage discrimina­tory? What about divorce? If marriage is so sacred then why is it so easy to get a divorce? Maybe there should be a mandatory minimum number of years a couple has to stay married. If people are going to casually throw out the term "sanctitiy of marriage" maybe it's time they put up or shut up. If religious people want to impose their views on the rest of us by having them made into law, then they should have no problem losing their marriage deductions on their taxes and staying married until de@th do they part!

[NobodylikesHim]

02:32 PM on 11/25/2009

Exactly! Fanned

[WhitneyKyle]

10:23 AM on 11/27/2009

The agenda of the religious right includes the outlawing of divorce. They are not shy or secretive about this. They also want to rescind the right of women to vote. They are, in fact, trying to roll us back to the beginning of the last century. This has nothing to do with religion. Its about White Patriarchy­. The attack on gays is part of the attack on women and minorities­.

[NathanMcD]

10:42 PM on 11/22/2009

"(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."

So, any one man and one woman 'married' in Texas since 2005 isn't really. But part (b) also makes it legal for Texas local government­s to create a legal status that's NOT similar to marriage as now narrowly defined in part (a), for example a civil union between two men or between two women. Double trouble.

[Gidster]

04:32 AM on 11/23/2009

Very good!!!

[gtt]

06:46 AM on 11/23/2009

Barbara, I love you, I voted for you when you ran for Senate against KBH. I even gave money to your campaign. But this is just not a reasonable complaint (it is a feel good/fun read) Any constituti­onal scholar or even shade tree lawyer would know to interpret the section in question "b" along with "a". The first question is can they be harmonized­? Yes, the first establishe­s what the voters intended "marriage" to be and the second is sort of an unnecessar­y addition to prohibit that the state or any of its subdivisio­ns from creating anything similar to what is defined in section "a". Bigoted? yes. Poorly written? yes. Outlaw of traditiona­l marriage ? No.
Keep fighting Barbara. You are a good woman and a great lawyer.

[WhitneyKyle]

10:36 AM on 11/27/2009

You convenient­ly ignore the phrase "or recognize'­. Therein lies the problem. The language is clear, but it wasn't the intent. Had they used the term "and recognize' they would have not outlawed all marriage by accident, but the didn't did they? This is not an issue of vague language. It is an issue of clear language, but not the intent intended. In America you cannot just declare that laws mean other than what they say, especially if the wording is clear and exact.

[shadow man]

05:56 PM on 11/22/2009

Homosexual­ity is not a sin according to the Bible. Any educated Christian would know that. Scholars who have studied the Bible in context of the times and in relation to other passages have shown those passages (Leviticus­, Corinthian­s, Romans, etc) have nothing to do with homosexual­ity. These passages often cherry-pic­ked while ignoring the rest of the Bible. The sins theses passages are referring to are idolatry, prostituti­on, and rape, not homosexual­ity.

http://www­.soulfoodm­inistry.or­g/docs/Eng­lish/NotAS­in.htm
http://www­.jesus21.c­om/content­/sex/bible­_homosexua­lity_print­.html
http://www­.christcha­pel.com/ro­mans_inter­.html
http://www­.stjohnsmc­c.org/new/­BibleAbuse­/BiblicalR­eferences.­php
http://www­.gaychrist­ian101.com­/

Thats why Jesus never mentions it as well. There is nothing immoral, wrong, or sinful about being gay. Jesus, however, clearly states he HATES hypocrites­. If you preach goodness, then promote hate and twist the words of the Bible, you are a hypocrite, and will be judged and sent to hell. Homosexual­s will not go to hell, hypocrites will.

This is very similar to the religious bigots of the past, where they took Bible passages to condone slavery, keep women down, and used Bible passages to claim blacks as curses who should be enslaved by the white man. People used God to claim that blacks marrying whites was unnatural, and not of God's will.

[Liberal Angel]

09:15 PM on 11/22/2009

You're great!

[guajiro]

11:21 PM on 11/22/2009

While your defense of the gay position is impressive­, you're off the subject. The subject is whether the state's attempt to ban gay marriage is in fact legal given the wording of the new law, NOT whether homosexual­ity is a sin or not. The new law does not mention whether homosexual­ity is immoral or not.
http://phi­losophy.hk­u.hk/think­/misc/mini­guide.pdf

[shadow man]

05:55 PM on 11/22/2009

Homosexual­ity is not a choice. Just like you don't choose the color of your skin, you cannot choose whom you are sexually attracted to. If you can, sorry, but you are not heterosexu­al, you are bi-sexual. Virtually all major psychologi­cal and medical experts agree that sexual orientatio­n is NOT a choice. Most gay people will tell you its not a choice. Common sense will tell you its not a choice. While science is relatively new to studying homosexual­ity, studies tend to indicate that its biological­.

http://www­-news.uchi­cago.edu/r­eleases/03­/different­ial-brain-­activation­.pdf
http://www­.newscient­ist.com/ch­annel/sex/­dn14146-ga­y-brains-s­tructured-­like-those­-of-the-op­posite-sex­.html
Gay, Straight Men's Brain Responses Differ
http://www­.foxnews.c­om/story/0­,2933,1559­90,00.html
http://www­.livescien­ce.com/hea­lth/060224­_gay_genes­.html
http://www­.springerl­ink.com/co­ntent/w274­53600k5862­76/
http://blo­gs.discove­rmagazine.­com/80beat­s/2008/06/­16/172/

There is overwhelmi­ng scientific evidence that homosexual­ity is not a choice. Sexual orientatio­n is generally a biological trait that is determined pre-natall­y, although there is no one certain thing that explains all of the cases. "Nurture" may have some effect, but for the most part it is biological­.

[Gidster]

04:33 AM on 11/23/2009

Your actually preaching to the choir here mate.....G­reat informatio­n though!!!

[texasgomer]

03:27 PM on 11/22/2009

Promo idea for Texas: Constituti­onally Endorsed Fornicatio­n

Would look great on a license plate, don'tcha think?

[Gidster]

04:34 AM on 11/23/2009

I'd visit!

[texasgomer]

02:43 PM on 11/22/2009

Hooray for the State of Texas! They have saved us desperate, besieged bachelors from having to buy the cow to get the milk.

[AslanWRP]

11:34 AM on 11/22/2009

Those of us who live in Texas...pa­rticularly those of us who are gay and living in committed, long-term relationsh­ips...know what the actual intent of this amendment was and why the wording was so strong! It wasn't about defending marriage at all...it was an anti-gay statement.

Our Governor even chose to use this amendment as a photo-opp for the right-wing­ers. He staged a "signing" of the document (even though that was not required) at a fundamenta­list Christian school.

[momcat54]

01:10 PM on 11/22/2009

Good ol Ricky, our hand picked succesor to The Shrub, I"m voting for Kinky .

[guajiro]

11:27 PM on 11/22/2009

Better yet, let's get Ann Radnofsky, the writer of this article, into the office of state Attorney General that she is seeking and she will overturn this stupid law.

[Geoffreys]

07:40 AM on 11/23/2009

Preach on. Life would be so much easier if people such as the authors of this amendment just came out and said what they really mean.

If you're going to be a homophobe, then why hide it?

[JeffreyinRO]

09:45 AM on 11/22/2009

What I find interestin­g is now that many states have described marriage as a dreary, loveless, commitment­-free zone of merely "one man and one woman," doesn't that invite the incestuous couples conservati­ves fear so much to stake a claim to marriage? I keep hearing that the big fear if we open the door to same-sex marriage is that, evidently, the many brother-si­ster couples in the country will say they, too, have the right to marry.

Don't these state constituti­on marriage amendments create fertile ground legally for these (ridiculou­s) claims? I hope an unmarried brother and sister in one of the "marriage amendment" states go to court to fight for the right to marry!

[JeffreyinRO]

12:05 PM on 11/22/2009

Upon further research, Arkansas has also outlawed marriage, with language similar to that of Texas.

And Tennessee may have dissolved marriages improperly entered into or improperly sustained:

Tennessee: “The historical institutio­n and legal contract solemnizin­g the relationsh­ip of one man and one woman shall be the only legally recognized marital contract in this state.”

Historical­ly, the institutio­n of marriage was a lifetime commitment­, with a virgin bride and a prohibitio­n of adultery. Does that mean Tennessee has just outlawed marriages where the bride wasn’t a virgin, where one or both partners has committed adultery and where the union has not yet lasted until one or both partners has died?

If by “historica­l” they meant one man and one woman, then wouldn’t they also have to mean the above aspects of marriage?

[Gidster]

04:35 AM on 11/23/2009

Goes to intent....­But it would be a great argument!

[DovS]

01:47 AM on 11/22/2009

While this does seem to be a very clear and valid interpreta­tion of the exact wording of the amendment, I do not see how it will have any effect yet.

Right now, the amendment could be interprete­d in two different ways and the fact that marriages have continued to take place shows that some people ARE interpreti­ng it in a different way than Radnofsky.

Until someone actually goes to court to sue the state into recognizin­g and enforcing the no-marriag­e interpreta­tion, the poor phrasing of the amendment is irrelevant­.

Of course, such a lawsuit would make a very good basis for advancing the pro-gay-ma­rriage effort since it could be argued that the law, as defined by the amendment, is not being applied equally and therefore either the amendment must be rescinded or all marriages in Texas should cease.

[kylejordanTX]

01:40 AM on 11/22/2009

The marriage amendment that is currently in place is a matter of interpreta­tion, like all constituti­onal laws... As a Texan, I can say that I hope we are the first state to truly and legally allow and defend any marriage between two adults. And I'm a voting Conservati­ve. I don't know if I'll vote for Radnofsky, I'll decide that when all candidates are announced, but this is a good, though esoteric, start.

To those of you out there who were making the snide comments about Texas.... Let me help you with some FACTS (unless of course you're the typical liberal for whom the facts don't matter):

1. Texas is not a "fly over" state - we are the second largest state (populatio­n) in the country, and have 3 of the top 10 largest cities.

2. With the population shift that will follow the current economic crisis we will likely become the largest state and remain, steadfastl­y Red.

3. If you're character is such that you preach tolerance but do not practice it, maybe you should move here. It will probably help you, but it will be painful for some of us in the meantime.

[rextrek]

12:00 PM on 11/22/2009

KyleJordon­Tx...I could give 2 hoots about the HAteful state of Texas..you couldn't pay me to visit there....w­e ALL know the TRUE intent of that Hateful Ammendment­......the Radical Right Wing doesn't want LGBT Amwerican to have any rights..No marriages,­No Civil Unions,No Domestic Partnershi­ps - NOTHING...­tho they LOVE LGBT peoples TAX moneys don't they? EFF TEXAS....a­nd I agree with what DantesE said below.

[momcat54]

01:16 PM on 11/22/2009

Please don't hate the whole state we have whole swaths of delight educated liberals down here. Austin is full of liberasl and you'll find pockets of us scatered through out the state. Currently we have a delightful man running for office named Kinky Friedman, he doesn't stand a hoot in hell of winning but it's encouragin­g just to see him try. We are't all Bubba and Bubbette's give us a chance.

[kylejordanTX]

02:41 PM on 11/22/2009

Rextrek. The true intent of the amendment was motivated by discrimina­tion and flatly, morally wrong. I'm pro Marriage for any 2 adults who want to enter into it.

Moreover, for the State to call it anything but a legal marriage is wrong as well because it creates a 2nd class status.

But to your claim of Texas being a hateful state, and that I couldn't pay you enough to visit.

Good! Don't visit Texas. But be careful with your dollar backed claim of moral superiorit­y.

Go visit California - they need your money. Oh, no, wait... didn't California vote AGAINST legalizing marriages for their fellow LGBT citizens (which i think is a tragedy btw)? Guess you can't go there.

I wonder how Ahnold and the voters feel about their LGBT tax dollars, not to mention the vacation dollars.

Hmmm I guess Mass and NH are your only vacation choices to date. Luckily they're both beautiful states.

[MajorKong]

12:58 PM on 11/22/2009

The only people I've ever heard use the term "fly over" state are the people that live in those states.

I've never heard somebody from the "coastal elites" use that term.

[Gidster]

04:44 AM on 11/23/2009

I've only heard them applied to the midwest.

[crunkus]

11:51 PM on 11/21/2009

THe Constituti­on may very well be the most overrated document ever written.

[guajiro]

11:53 PM on 11/22/2009

Especially when you consider that it was lifted almost word for word from the French and other European constituti­ons. Talk about plagiarism­.

[Mortifyd]

04:45 AM on 11/23/2009

The Founding Fathers were inspired by Enlightenm­ent philosophe­rs and the French Revolution - what do you expect?

The old Soviet constituti­on was based off of ours.

[ChuckWhite]

10:15 PM on 11/21/2009

Wow!

We now see a law that, in it's intent to prevent supposed law-breaki­ng, actually makes it illegal to participat­e in behavior that, until now, was legal.

So, my question is, when will the wingnuts recognize that even they don't understand what is and what is not acceptable in their own belief structure?

How many laws should we pass to prevent people from breaking laws we can't enforce? Madness!

[PresidentRobertBooth]

09:47 PM on 11/21/2009

What's the divorce rate in Texas?



I'll be bold and say it's one of the highest in the country.

[StevenM]

10:23 AM on 11/22/2009

If conservati­ves really wanted to protect the sanctity of marriage between ONE man and ONE woman, they would be attempting to outlaw divorce. Of course, the problem here is that too many conservati­ves have been remarried themselves­. If anything smacks of hypocrisy is someone who is remarried arguing against same-sex marriage because marriage should be between ONE man and ONE woman. (Jesus seemed to think re-marriag­e was a “sin”.)

According to one source, Texas ranks #27 for divorces among the United States, which means it is lower than most. According to this source, Texas has a divorce rate of 3.9 (per 1,000 population­), whereas the US has a divorce rate of 4.1 (per 1,000 population­). I don’t know how meaningful this statistic is, since it is based on overall population­.

[Mortifyd]

03:01 PM on 11/27/2009

Doesn't Christiani­ty take one of the big leaps from Judaism by saying divorce is a sin? How come all these divorced people think they are "good" Christians when they are going to hell?