Texans Ban All Marriage

by Jesse Galef

Do you remember how people insisted that the gays were trying to ruin marriage?  Well, they succeeded in Texas.  When the people of Texas passed a 2005 constitutional amendment to “protect” marriage, those clever, clever gays somehow forced them to word it poorly enough that it might prohibit ALL marriage in the state, same-sex or otherwise:

The amendment, approved by the Legislature and overwhelmingly ratified by voters, declares that “marriage in this state shall consist only of the union of one man and one woman.” But the troublemaking phrase, as Radnofsky sees it, is Subsection B, which declares:

“This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

Architects of the amendment included the clause to ban same-sex civil unions and domestic partnerships. But Radnofsky, who was a member of the powerhouse Vinson & Elkins law firm in Houston for 27 years until retiring in 2006, says the wording of Subsection B effectively “eliminates marriage in Texas,” including common-law marriages.

Why, yes, I do believe that legal recognition of marriage is a legal status “identical or similar to marriage.”  By definition.

How in the world did that slip by people?  It’s a pretty big deal.  They might need a new constitutional amendment to fix the problem.

It’s absolutely legal to stop recognizing civil marriages.  The people (through the governmental processes) can decide what relationships to grant special recognition and benefits.  They decided to stop granting benefits to any relationships.  Kudos for leveling the playing field for all sexual orientations, Texas!

I’m guessing it’s not what the people of Texas thought they were agreeing to.  Their best options are an activist judge and revising their governing document.  Which idea do you think offends Texans more?

About Dr. Denise Cooper-Clarke

I am a graduate of medicine and theology with a Ph.D in medical ethics. I tutor in medical ethics at the University of Melbourne, am an (occasional) adjunct Lecturer in Ethics at Ridley Melbourne, and a voluntary researcher with Ethos. I am also a Fellow of ISCAST and a past chair of the Melbourne Chapter of Christians for Biblical Equality. I have special interests in professional ethics, sexual ethics and the ethics of virtue.

  • sli

    Whoops! Too late, now!

  • SteveC

    This again? Weird. This was all over the atheist boards on the net back in 2005, when it was happening. This didn’t just get noticed now. It was noticed then too.

    Heck, it was in the Houston Chronicle:

    “Opponents said the initiative’s poor wording could effectively nullify all marriages. Texas Attorney General Greg Abbott disagreed with that interpretation and recorded a phone message saying that the amendment did not threaten traditional marriages.” — Houston Chronicle, Nov 9, 2005.

    http://www.chron.com/CDA/archives/archive.mpl?id=2005_4004886

    I know it’s funny, but it’s also old.

  • Mary

    I knew George Bush was a bastard!! MUAH HA HAAAA… =D

  • gski

    Do Texans actively seek ways to embarrass themselves?

  • Jasen777

    It was brought up during the campaign before the election.

    That wording was put there to ban civil unions.

  • Daniel

    This is pretty much a non-issue, unfortunately for gay rights activists. Laws, and constitutional amendments in particular, are vaguely worded on purpose, so that the courts are given the job of “interpreting the original intent.” If you want to complain about a poorly-worded amendment, try the US constitution before the Texas one.

    Things will continue along the way they have been, with Texans allowing only the god-decreed union of Man and Woman.

    …unless one of them is already married.

    …or they’re related.

    …or one of them is too young.

    …or they’ve entered into any one of a number of other legal arrangements, like adoptions.

    I guess it’s not as simple as they like to say.

    Honestly though, it would take a serious activist judge with an enormous set to start denying hetero marriages based on this amendment. Especially in Texas, it would be political suicide to change the way amendments are traditionally treated.

  • Elizabeth McFadden

    I remember reading about this back in 2005 — but I still find it funny! :-)

  • Josh BA

    This is awesome. I am all for teaching bigoted assholes a lesson. Same goes for those people that continued to get legally married even if they disagreed with the new laws. If they made a law saying blacks couldn’t ride on the bus, no matter how much you fought against the law being passed, the right thing for you to do is stop riding the bus in protest. Not continue to do so while shrugging and saying “oh, well. I tried.”

    I think the same thing (marriage being banned) should happen in my state of California too. The constitutional reasoning for marriage being legal for gays never changed, they just made it so that the granting of marriage certificates could never, by legal fiat, be brought in line with the previous ruling.

  • Pony

    Huh. Will you look at that.

    I guess gay marriage (or at least a fear of it) really DID destroy traditional marriage in Texas!

  • bigjohn756

    It never ceases to amaze me how far these Christian bigots will go to control the behavior of others. Now these zealots have screwed everything up trying to be certain that there are no loopholes through which an evil gay person might slip.

    I am so proud to be a Texan! BTW, I voted against this, duh.

  • http://lagunatic.wordpress.com/ Lagunatic

    They do say that everything is bigger in Texas – I guess this includes their idiots.

  • mikespeir

    We did it! We kept those dirty gays from getting married. Our next project? Wipe out the human race so there won’t be any more war.

  • Tsugradstudent

    The problem with this is that its not going to be a simple answer for either an activist judge or a revision of the constitution, its going to take both. Unfortunately, Texas has one of the most screwed up constitutions in the nation because to do ANYTHING- you have to amend the constitution. The other issue with this is that because the legislature only meets once every two years, it will be another two years before anything is accomplished. Hopefully in that two years, we can manage to elect someone other than Rick “The Hair” Perry and his band of blissful idiots into the governor’s mansion.

  • ecorona

    Why does the government sanction marriage anyway? If the “traditional” definition is “holy matrimony,” shouldn’t it be left to churches? And of course, we could just agree to extend tax benefits, etc. to sanctioned domestic partnerships between any two (or more?) Americans. Who’d'a thunk Texas would be in the lead on this?

  • http://godlessartist.blogspot.com/ Kilre

    This is why we can’t have nice things.

  • Vas

    I will never understand why we get to vote on who gets civil rights. The USA is a constitutional democracy not just a mob rule situation, why even bother with having a constitution if we just let the mob run rough shod over the minority. Maybe next Texas will decide that gay people are only 3/5ths of a person, or not even human, hell they could issue hunting permits to cull the gay herd. Way to go Texas, after all in Texas everyone knows all heterosexual, white, Christian, men are created equal, (except those liberal agitators, but there are not real Christians anyway). I know this is old news but really these marriage bans stink. Liberty and justice for some.

  • Polly

    Vas,

    You know it struck me as really funny (not so much ha-ha) that we’re only a “democracy” when it comes to denying gays equal treatment. All the other important things like: whether or not to get involved with trillion dollar wars, whether to subsidize huge businesses with tax dollars, etc. all that stuff gets decided by a few hundred people voted into office mostly…
    OUT OF HABIT by probably much less than half the population.

    Our government does a lot of really unpopular things, but that’s still considered democracy. But, try to get equal treatment under the law, and “OMG activist judges legislating from the bench!!”
    (I realize I’m not delineating state vs. federal)

  • http://www.davehodgkinson.com/ Dave Hodgkinson

    Um, why is marriage even special?

    By all means contract a union to agree to jointly care for a child, but otherwise?

    A society needs a generation of shiny, well-cared for kids to look after the previous and next generations.

    Should a pair of issue-less folks of any gender get any other special recognition?

    Make a will, people.

  • Miko

    @ecorona:

    Eliminating government recognition of marriage is of course the right decision, but it can’t really be done at a state level, since there are a number of federal laws that implicitly assume that each state recognizes and grants an institutional marriage contract. While I’m all in favor of local action, we sadly need to fix this problem at the federal level first.

  • http://mingfrommongo.livejournal.com/ mingfrommongo

    I think Vas is on to something…

    “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.”

    Gays, it would seem are “other Persons,” not “free persons.” I wonder if there are enough LGBT persons in Texas to reduce Texas’ number of representatives & incoming federal money.

    I know, Section 2 of the 14th amendment fixes that 3/5s thing, but Section 1 of the same amendment says

    “nor shall any state…deny to any person within its jurisdiction the equal protection of the laws.

    We seem to ignore that part just fine.

  • CarolAnn :)

    I voted against it.

  • Daniel

    One more comment from me, if nobody minds. The phrase “or similar to marriage” opens up an entirely new set of legal problems, if you take it literally. How similar is similar? Like I said before, courts will PROBABLY adhere to the spirit of the amendment, but what happens if someone tries to invalidate their dual proprietorship? That’s a legal contract between two people that provides insurance, tax, and social benefits. That’s similar to marriage. The purposefully vague wording allows for the courts to stretch this amendment to cover any kind of crazy unions “the gays” can come up with. However, because it’s so vague, it tends to cover its intended target as well as some collateral damage.

    The reason for the “or identical to” phrasing, by the way, is specifically so that you can’t say “ok, we’re cribnobbled, it’s just marriage but we changed the word to get around your silly constitution!”

    The more people try to legally disallow gay marriage, the more ridiculous they appear. They go to such extremes to keep gay couples from getting insurance and death benefits, it’s ridiculous. Unfortunately we have to wait a few more years until we have a Supreme Court that leans slightly more left, then some of these state laws need to be challenged. Without Antonin “Christian crosses are non-denominational” Scalia, SCOTUS should shoot down these discriminatory laws as the unconstitutional swill that they are.

  • Mister Trickster

    Hey, it was also Texans who noticed the hilarity–Go Houston lawyers!

  • muggle

    I’m with Vas on this. I, for the life of me, can’t see how civil liberties can be up for a vote. This… Proposition 8… That’s all they are, civil rights put to a vote.

    I’m also real tired of marriage being called religious. Um, no, only if it’s done in church. Um, marriage is marriage whether recognized by some religious sect or not.

    (Though my husband and my in-laws teased me for the four years of my marriage that he got me to marry him in church because the town hall, his hometown, was a converted church that had gone out of business. I should have known the marriage was doomed with that bad omen.)

  • Jen

    I am all for getting rid of couple-privilege and just making marriage be legally what it already is socially- whatever the hell two (or more) people want it to be. All the legal benefits can and should be bestowed on whoever the sheath of paperwork you fill out says they should go to. And then we can all dance around a maypole.*

    Till then, of course, I will support gay marriage at the polls, should it ever come to my state, which it probably won’t, even though IOWA did it, and isn’t that a little embarrassing?

    *This is not optional, people.

  • littlejohn

    You may be able to prevent Texans from marrying, but unfortunately, no one can stop them from breeding.

  • http://www.twitter.com/WCLPeter WCLPeter

    I don’t really pay much attention to what happens in the States at a “local” level, but this seems like a wasted opportunity to me.

    The people voted for a law indicating the State would no longer be able to sanction marriages, or anything like a marriage. Since I’m pretty sure the State continued to issue marriage licenses, I’m surprised a gay rights group didn’t sue the state of Texas for failure to comply with the will of the people.

    It would have been a goldmine PR campaign and I’m shocked they didn’t take the opportunity to use it.

  • benjdm

    I, for the life of me, can’t see how civil liberties can be up for a vote.

    How else do they get to be legal? The Bill of Rights was voted on.

    http://en.wikipedia.org/wiki/United_States_Bill_of_Rights#Ratification_process

  • Greg

    Am I the only one who, when they read this line:

    “…marriage in this state shall consist only of the union of one man and one woman.”

    thought they meant that only one marriage was allowed in the entire state, and once the first marriage took place everyone else had to wait for one of them to kick the bucket?

    Just me then?

    :)

  • Great Idea!

    Finally – a state doing the right thing.

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  • Cvett84

    I certainly wish I knew this earlier I would have moved to TEXAS instead of Colorado. Finally a state who has seen the light


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