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.
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