Barbara Ann Radnofsky, formerly a partner with Vinson & Elkins and now a Democratic candidate for Texas Attorney General, has pointed out the uncomfortable fact that a 2005 amendment to the state constitution, which was designed to ban gay marriage, may in fact ban ALL marriage. Certainly this is in part an effort to blame the current attorney general for something, but she may have a point.
This is the text of the relevant section of the Texas Bill of Rights:
Sec. 32. MARRIAGE.
(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.
Tex. Const. Art. I, § 32. Your first thought might be, that looks like something you would find in a "Bill of Non-Rights," but Article I also has other restrictive provisions, mostly as to the rights of criminal defendants, so that just appears to be where Texas puts all its rights-related stuff.
Now, everybody agrees that the intent of Section 32(a) was to ban gay marriage. But in going further and trying to ban similar arrangements like "civil unions" or "domestic partnerships," which is what Section 32(b) seems to be aimed at, advocates of the ban may have gone too far. If the state cannot create or recognize "any legal status identical or similar to marriage," Radnofsky argues, then it cannot create or recognize marriage, because marriage is not only similar to marriage, it is in fact identical to it. "You do not have to have a fancy law degree to read this and understand what it plainly says," Radnofsky was quoted as saying. (She in fact has a University of Texas law degree, which is only relatively fancy.)
"It's a silly argument," said Kelly Shackelford, president of the Liberty Legal Institute in Plano, Texas. (Shackelford got his J.D. from Baylor, so his degree might be considered less fancy than Radnofsky's although neither of them is particularly fancy. That is, they are both probably considered very fancy in Texas, but nationally might be considered less fancy than a fancy Ivy League law degree, which does not at all mean that the difference in fanciness is significant. If you're wondering, I went to Georgetown, which turns out to be considered less fancy than I thought it would.) Shackelford estimated the chances of any lawsuit based on Section 32(b) at about "one chance in a trillion," which is fancy talk for "it ain't very likely."
That's almost certainly true, and you could also argue that the reference to a status "identical to marriage" could not be read to include marriage itself because that would make the words "identical or" redundant, and God knows no legislature would use any redundant words. This also highlights the uncomfortable fact that even constitutions have words that we routinely ignore, like maybe "shall not be infringed" or "Congress shall make no law." Technically, I have the right to own a tank, but sadly a lawsuit based on that claim has about one chance in a trillion. Whether or not generally we should have words in a constitution that we ignore, or whether we should be ignoring the ones we have (and if so which ones) are excellent questions that I will hopefully soon be too drunk to worry about.
Before that happens, though, I want to point out a couple more provisions of the Texas Bill of Rights that might have some relevance to gay marriage. Section 3 states that "All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges . . . ." Marriage seems like a social compact to me, so maybe it is un-state-constitutional to give straight men the right or privilege to marry while denying it to gay men. If that were true, it would have to apply to women as well as men, because Section 3a is pretty clear that "Equality under the law shall not be denied or abridged because of sex . . . ." That one does leave out "gender," but this argument relies on Section 3 to confer the right, not 3a.
Am I, too, being overly literal? Probably. Do I have a strong interest in the outcome of the gay marriage debate? Not personally. Would I like to see this argument in Texas go on and on? Absolutely.
Link: Fort Worth Star-Telegram
Link: FindLaw's Law & Daily Life Blog
Link: Texas Constitution and Statutes