Did Texas Ban Marriage?
Barbara Ann Radnofsky, a Democratic candidate for Texas attorney general, claims a 2005 constitutional amendment designed to ban gay marriages actually bans all marriages.
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.
While I don’t have any fancy law degrees, it’s pretty clear to me that the amendment does not endanger “marriage” in Texas. The key word in the clause in question is “create.” Given that 1) marriage existed in Texas before the amendment and 2) that the first clause in the amendment reiterates the existence of marriage, merely clarifying its definition, the subsequent clause rather clearly bans only the creation of analogous institutions.
Regardless, this controversy is amusing.