(I hope that any residents here of the great state of Texas don't take offense at the thread title, but really, I just couldn't resist.)
quote:

Texas marriages in legal limbo because of constitutional amendment, candidate says



By DAVE MONTGOMERY

dmontgomery@star-telegram.com

AUSTIN — Texans: Are you really married?

Maybe not.

Barbara Ann Radnofsky, a Houston lawyer and Democratic candidate for attorney general, says that a 22-word clause in a 2005 constitutional amendment designed to ban gay marriages erroneously endangers the legal status of all marriages in the state.

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.

She calls it a "massive mistake" and blames the current attorney general, Republican Greg Abbott, for allowing the language to become part of the Texas Constitution. Radnofsky called on Abbott to acknowledge the wording as an error and consider an apology. She also said that another constitutional amendment may be necessary to reverse the problem.

"You do not have to have a fancy law degree to read this and understand what it plainly says," said Radnofsky, who will be at Texas Christian University today as part of a five-city tour to kick off her campaign.

'Entirely constitutional’

Abbott spokesman Jerry Strickland said the attorney general stands behind the 4-year-old amendment.

"The Texas Constitution and the marriage statute are entirely constitutional," Strickland said without commenting further on Radnofsky’s statements. "We will continue to defend both in court."

A conservative leader whose organization helped draft the amendment dismissed Radnofsky’s position, saying it was similar to scare tactics opponents unsuccessfully used against the proposal in 2005.

"It’s a silly argument," said Kelly Shackelford, president of the Liberty Legal Institute in Plano. Any lawsuit based on the wording of Subsection B, he said, would have "about one chance in a trillion" of being successful.

Shackelford said the clause was designed to be broad enough to prevent the creation of domestic partnerships, civil unions or other arrangements that would give same-sex couples many of the benefits of marriage.

Radnofsky acknowledged that the clause is not likely to result in an overnight dismantling of marriages in Texas. But she said the wording opens the door to legal claims involving spousal rights, insurance claims, inheritance and a host other marriage-related issues.

"This breeds unneeded arguments, lawsuits and expense which could have been avoided by good lawyering," Radnofsky said. "Yes, I believe the clear language of B bans all marriages, and this is indeed a huge mistake."

In October, Dallas District Judge Tena Callahan ruled that the same-sex-marriage ban is unconstitutional because it stands in the way of gay divorce. Abbott is appealing the ruling, which came in a divorce petition involving two men who were married in Massachusetts in 2006.

Massive error?

Radnofsky, the Democratic nominee in the Senate race against Kay Bailey Hutchison in 2006, said she voted against the amendment but didn’t realize the legal implications until she began poring over the Texas Constitution to prepare for the attorney general’s race. She said she holds Abbott and his office responsible for not catching an "error of massive proportions."

"Whoever vetted the language in B must have been asleep at the wheel," she said.

Abbott, a former state Supreme Court justice who was elected attorney general in 2002, has not indicated whether he will seek re-election and is known to be interested in running for lieutenant governor. Ted Cruz, who served as solicitor general under Abbott, is running for attorney general in the Republican primary.

Radnofsky, who has not yet drawn a Democratic opponent, is scheduled to appear at the Tarrant County Young Democrats Gubernatorial Forum at 6:30 tonight at TCU.

http://www.star-telegram.com/l...ry/1770445.html#none

Original Post
Good lord. Roll Eyes

I sure hope a another Democratic or Independent challenger steps forward soon ... cause this woman sounds like a dingbat! Or, better yet, a typical Texas politician. Neither of which makes me enthusiastic to want to cast my vote for her!

Either way ... it sounds like we'd still be a screwed up state ... whether she, or another Republican, were to get the job! sck
A dingbat?

Why?

Because she actually took the time to read the Amendment? (Unlike some of the idiots who voted for it who were too blinded by hate to even bother reading it first, aparently.)

The first sentence defines marriage, which the second sentence then proceeds to ban.

quote:

(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.


Under the plain wording of the Amendment, anything identical to marriage (of course, the only thing identical to marriage is marriage itself) may not be recognized in Texas.

Haven't these folks ever taken a basic logic class?

Everything is identical to itself.
So what the problem is?? Confused

Either you get married ... or you're not married!


And as to the dingbat situation ... Texas has MUCH bigger fish to fry than that clause in a marriage amendment. If she's serious about being AG ... she needs to try to figure out what those other more important things are ... and make NEWS about THAT!! Eek

She can be Jesus Christ herself ... and she is not going to change the minds of the legislature nor the people when it comes to gay marriage in this State!

People would die first. And that's no joke. sck
quote:
Originally posted by EbonyRose:
So what the problem is?? Confused

Either you get married ... or you're not married!


Not getting married isn't a problem.

Getting married is a problem, at least if you want the state of Texas to recognize the marriage, which it is no longer allowed to do.

The anti-marriage crowd won in Texas. They managed to ban marriage all together.
quote:
Originally posted by EbonyRose:
So what the problem is?? Confused

Either you get married ... or you're not married!


And as to the dingbat situation ... Texas has MUCH bigger fish to fry than that clause in a marriage amendment.

If she's serious about being AG ... she needs to try to figure out what those other more important things are ... and make NEWS about THAT!! Eek


It could be pretty serious if Texas couples were to try, for example, to file joint income taxes.

They could be imprisoned for income tax fraud, since they are really not married.
quote:
Originally posted by ricardomath:
quote:
Originally posted by EbonyRose:
So what the problem is?? Confused

Either you get married ... or you're not married!


Not getting married isn't a problem.

Getting married is a problem, at least if you want the state of Texas to recognize the marriage, which it is no longer allowed to do.

The anti-marriage crowd won in Texas. They managed to ban marriage all together.


Well, apparently, that is an opinion only you and this woman share! Smile Perhaps you should move to Texas and give her her only source of support! Big Grin
quote:
She can be Jesus Christ herself ... and she is not going to change the minds of the legislature nor the people when it comes to gay marriage in this State!


The people of Texas have already decided.

They have voted to ban all marriage, gay or straight, as well as anything similar to marriage.
quote:
Originally posted by EbonyRose:

Well, apparently, that is an opinion only you and this woman share! Smile


Not at all. There were straight folks who tried to save marriage before the vote.

They just failed to convince their fellow Texans that their marriages were worth saving.

The voters were too filled with hate to even care.
quote:
Originally posted by ricardomath:
quote:
Originally posted by EbonyRose:
So what the problem is?? Confused

Either you get married ... or you're not married!


And as to the dingbat situation ... Texas has MUCH bigger fish to fry than that clause in a marriage amendment.

If she's serious about being AG ... she needs to try to figure out what those other more important things are ... and make NEWS about THAT!! Eek


It could be pretty serious if Texas couples were to try, for example, to file joint income taxes.

They could be imprisoned for income tax fraud, since they are really not married.


Hmmm .. well, since that Amendment has been in force since 2005 ... and untold millions of joint tax returns have already been processed ... not to mention the fact that Texas doesn't have a state income tax ... that scenario seems like a ridiculous stretch of the imagination! Eek
quote:
Originally posted by EbonyRose:
quote:
Originally posted by ricardomath:
quote:
Originally posted by EbonyRose:
So what the problem is?? Confused

Either you get married ... or you're not married!


And as to the dingbat situation ... Texas has MUCH bigger fish to fry than that clause in a marriage amendment.

If she's serious about being AG ... she needs to try to figure out what those other more important things are ... and make NEWS about THAT!! Eek


It could be pretty serious if Texas couples were to try, for example, to file joint income taxes.

They could be imprisoned for income tax fraud, since they are really not married.


Hmmm .. well, since that Amendment has been enforced since 2005 ... and untold millions of joint tax returns have already been processed ... not to mention the fact that Texas doesn't have a state income tax ... that scenario seems like a ridiculous stretch of the imagination! Eek


No more rediculous than imagining Iowa married couples being prosecuted for filing joint income taxes.

It's the law.

Now, the law may not be enforced. or it may be selectively enforced, but so long as it is the law, there is a danger of enforcement action being taken.
ROFLMAO

I am no lawyer but I can see the meaning of that statement is pretty obvious.

So everyone married in Texas since 2005 ain't married.

So everybody that wants out can just walk out and not bother with a divorce.

20 lol 20

Everybody else has to get married AGAIN. At least when the idiot legislatures fix the law they broke. lol

Xum
Roll Eyes Oh, brother. What a stupid argument.

One way we can see how bullshit this argument is is that they only quoted one person who believes in it. They quoted the hell out of her, too. But there's no issue here, except to people who want there to be one. Under widespread principles of statutory construction (meaning the way courts construe statutes), there is no issue here. If I were a judge hearing a case brought under this, I'd sock the plaintiffs attorneys with fines for frivolous lawsuits.

Support for same-sex marriage (or for any issue, really) is ill-served by promoting absurd arguments like this. Obviously, they're saying nothing other than actual marriage, as defined in #1, can be recognized as having the status marriage has.
quote:
North dakota

Marriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect


quote:
Utah

Marriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.[43]


quote:
Kansas

(a) Marriage shall be constituted by one man and one woman only. All other marriages are declared to be contrary to the public policy of this state and are void. (b) No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage.


quote:
South Carolina

A marriage between one man and one woman is the only lawful domestic union that shall be valid or recognized in this State. This State...shall not recognize...any other domestic union, however denominated.


quote:
Florida

Inasmuch as marriage is the legal union of one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized


quote:
Texas

(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.

Eek
quote:
Originally posted by Vox:
Roll Eyes Oh, brother. What a stupid argument.

One way we can see how bullshit this argument is is that they only quoted one person who believes in it. They quoted the hell out of her, too.


That's because the story is more about the fact that a candidate for Texas Attourney General said it, than the Amendment itself.

This was an issue during the cmpaign prior to the vote. Straight folks in Texas were protesting the Amendment, for fear of their own marriages being invalidated, prior to the vote taking place, at the same time that the KKK was rallying its forces in support of the Amendment. The KKK won the vote, but they may very well have succeeded in invalidating their own marriages in the process.

Texans were warned, but decided to throw their lot with the KKK and take their chances instead of heeding the warning. Have the good residents of Texas never heard of this?

The issue just came back into the news now because of the AG candidate bringing it up again.

Here's an example of an article dated prior top the vote:

quote:

Group Says Prop. 2 Could Make Straight Marriage Illegal



BY AMY SMITH
October 28, 2005



Opponents of Prop. 2's constitutional ban on gay marriage rallied in Wooldridge Park on Monday to warn that faulty wording in the proposition could threaten all marriages.


Faulty wording in a proposed constitutional ban on same-sex marriage poses a bigger threat to "traditional" marriage than all the homosexuals in the world, opponents of Prop. 2 declared Monday, the first day of early voting.

A newly formed group, Save Texas Marriage – a blood relative of the No Nonsense in November campaign – has mounted a full-on attack on Prop. 2 that includes a massive rollout of automated calls to nearly two million homes across the state. In one call, the Rev. Tom Hegar, a Presbyterian minister, warns that because the second part of the proposed amendment, prohibiting the recognition of "any legal status identical or similar to marriage," fails to distinguish between same-sex couples and heterosexual couples, a "liberal activist judge" could see fit to void all marriages. "Don't risk it; vote against it," Hegar says, and ends with "God bless you."

"Sleazy," declared Kelly Shackelford, a Plano attorney who helped write the proposed amendment. "This is obviously an attempt to confuse and deceive people to vote against it." And he knows of at least a handful who already did. "They were just sick when they realized they voted the opposite of what they intended," said Shackelford, president of the conservative Free Market Foundation. Until yesterday, he added, the pro-amendment campaign had been moving along sluggishly. "I feel there is a dramatic difference now. This [new tactic] has angered and energized people to vote for the amendment. I'm hopeful that this will backfire on them."

Others argue that Save Texas Marriage is merely pointing out the confusion, not creating it. "Legislators did such a poor job drafting the amendment that all marriages in the state of Texas are at risk of being invalidated," said Trampes Crow, an Army captain, who appeared with his wife, Jennifer, and several other male-female couples at a press conference across from the Travis Co. courthouse, just a few hours into early voting. Austin community activist Martha Cotera took a dim view of Prop. 2 proponents eager to pass a ban outlawing what is already outlawed in Texas. "For God's sakes," she asked, "don't these people have lives?"

On a somewhat related note, the Ku Klux Klan will hold a rally Nov. 5 in front of City Hall to encourage voters to support Prop. 2.

http://www.austinchronicle.com...ory?oid=oid%3A303822
It's still stupid, Ricardo. There's a pretty standard rule of interpretation that when one interpretation would lead to an absurd result, and there's another interpretation that doesn't, you go with the one that doesn't. Especially when that interpretation is consistent with the legislative intent of the wording. But just a few years ago, when I tried to tell you that the pro-gay marriage proponents were barking up the wrong tree with that "amendment vs. revision" nonsense in California, what I have to say need not matter one bit. Big Grin
Vox, while it may not have a judicial impact on legal, licensed marriages in Texas, it could have a great impact on common-law marriages. And with the numbers of folks shacking up over the long term, I could see that as a problem if they break up and have disputes over propery division. The language is a mess...
quote:
Originally posted by Vox:
It's still stupid, Ricardo. There's a pretty standard rule of interpretation that when one interpretation would lead to an absurd result, and there's another interpretation that doesn't, you go with the one that doesn't. Especially when that interpretation is consistent with the legislative intent of the wording. But just a few years ago, when I tried to tell you that the pro-gay marriage proponents were barking up the wrong tree with that "amendment vs. revision" nonsense in California, what I have to say need not matter one bit. Big Grin


California should have done what DC did this week, when the elections board or whatever rejected holding a vote because it would have been in violation of the city's Human Rights Act.

I think that the DC City Council is going to vote to approve same sex marriage in DC next week.
quote:
Originally posted by ricardomath:

Under the plain wording of the Amendment, anything identical to marriage (of course, the only thing identical to marriage is marriage itself) may not be recognized in Texas.


This is where you're wrong, RM!

"Identical to ..." does not mean "the same as .." and there are several constructions that are 'identical' to marriage that aren't marriage itself! Especially when 'marriage' has its own specific definition.

Technically speaking, the words "identical" and "similar" are adjectives ... which means they have to describe something and have less value than the noun that they are being used to describe.

The noun (marriage) doesn't need the adjective (identical) to be valid ... but the adjective is just out there by itself (impotent), if it has nothing to reference itself to.

But, as VOX said, you (and Ms. Radnofsky) will read and interpret it however you want to. And the fact that that interpretation does not make any legitimate sense doesn't seem to bother you in the least!
quote:
Originally posted by shulamite:
Vox, while it may not have a judicial impact on legal, licensed marriages in Texas, it could have a great impact on common-law marriages. And with the numbers of folks shacking up over the long term, I could see that as a problem if they break up and have disputes over propery division. The language is a mess...

I thought about the impact to such "common-law" marriages, too. But, to be honest, I'm not sure I agree with that whole scenario, either!

Marriage is marriage ... and you're either (legally) married or you're not! Eek There is a definitive line drawn in the sand that differentiates the two. If there are benefits that come with legalized marriage, you just don't start handing them out to 'almost the same as' type situations!

Now that doesn't mean that you can't have a separate set of rules/laws/names in place for other type situations ... such as two people living together, same-sex couples, etc. Bur marriage is already its own defined entity. And something 'close to it' is not the same thing as 'the same as'.
quote:
Originally posted by EbonyRose:
quote:
Originally posted by ricardomath:

Under the plain wording of the Amendment, anything identical to marriage (of course, the only thing identical to marriage is marriage itself) may not be recognized in Texas.


This is where you're wrong, RM!

"Identical to ..." does not mean "the same as .." and there are several constructions that are 'identical' to marriage that aren't marriage itself! Especially when 'marriage' has its own specific definition.


I guess that I'm going to have to revise my logic class to reflect Texan use of the identity relation.

sck

So Texans think that it is irreflexive, huh?
quote:
Originally posted by shulamite:
Vox, while it may not have a judicial impact on legal, licensed marriages in Texas, it could have a great impact on common-law marriages. And with the numbers of folks shacking up over the long term, I could see that as a problem if they break up and have disputes over propery division. The language is a mess...
It's not the typical, hyper-specific legalese that it could have been, but there's still no issue.

EbonyRose breaks down beautifully in her two posts above exactly what the deal is here. I wasn't going to, because at first I didn't want to dignify this article with a serious treatment. But yes, you can't construe the phrase "similar or identical" to marriage as denoting marriage itself. You don't look at your own house and say, 'Wow, my house is identical to my house.' You can look at ANOTHER house and say that that house is identical to yours. No court, and no one who lacks a burning desire to read it the way RM wants to read it, would be able to interpret the phrase, "legal status identical or similar to marriage" as actually including marriage.

It's not worded the way they should have, but there's nothing to worry about. Even if there's a zealous judge who might try to rule on that point, or a zealous justice of the peace who might want to go there, they won't go for it, because judges hate being reversed on appeal.
quote:
Originally posted by Vox:

There's a pretty standard rule of interpretation that when one interpretation would lead to an absurd result, and there's another interpretation that doesn't, you go with the one that doesn't.


Interesting rule...

19

Especially in the context of an absurd amendment.

I mean, what is the non-absurd interpretation?

On the one hand, preventing all couples from marrying would be absurd.

On the other hand, preventing couples from marying solely on account of gender would be absurd.

When faced with two equally absurd interpretations, which one do you go with?



Confused
quote:
Originally posted by Vox:
But yes, you can't construe the phrase "similar or identical" to marriage as denoting marriage itself.


I agree that Texas marriage itself is not at risk. But, because of this language, common-law arrangements are at risk. Common-law "marriage" is similar to marriage but it isn't marriage.

Like ER, I have never understood the origin of "common-law" recognition by the courts. I thnk the intent was to protect longtime girlfriends/mistresses (with children) from being thrown out on their feet with nothing to their names. But since common-law marriage exists and since there has been widespread practice of judicial-mandated property division following a common-law breakup - I can forsee a enterprising party in Texas disputing his/her property division based on this language, forcing the court to redefine what common-law is and isn't.

Ricardomath, I haven't followed the legal arguments for gay marriage very closely. How does the precedent of common-law marriage factor into the strength of pro-gay marriage legal arguments?
quote:
Originally posted by shulamite:

..I can forsee a enterprising party in Texas disputing his/her property division based on this language, forcing the court to redefine what common-law is and isn't.


Hmmmm ... 19 ... personally, I can't say that I would necessarily see this as a bad thing ....

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