Legal Research

The State of Marriage in the State of Texas

By Simon Fodden

We’re late to the party on this one, which has been bouncing around the internet over the last week, starting with a claim (by Barbara Ann Radnofsky, a lawyer and a candidate for the office of Texas attorney general) in the Fort Worth Star Telegram, picked up by the Huffington Post, that a 2005 amendment to the Texas Constitution effectively wiped out legal marriage there. The thing that has Radnofsky fussed — and scornful — is Paragraph (b) of Section 32 of Article 1 (Bill of Rights), which reads as follows:

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

Radnofsky’s argument is that the plain meaning of this provision undoes legal marriage, because, it seems, “marriage” is “identical . . . to marriage.” Fun with words. So Language Log’s Mark Liberman reminds us that he wondered four years ago when the amendment was originally passed whether marriage was “identical or similar to itself”; and he, too, goes on to suggest — with mischief in mind — that Justice Scalia’s theory of meaning would “conclude that the state of marriage does not now exist in the state of Texas, given that he’s big on “sentence meaning” as opposed to “speaker meaning,” to use Liberman’s terms.

Before you tackle this provision with your own hermeneutic, you should know that there’s a paragraph (a):

(a) Marriage in this state shall consist only of the union of one man and one woman.

And this ups the interpretive ante quite nicely, making clear for those who pursue legislative intent what the anti-gay purpose is, and declaring by (necessary?) implication that marriage does exist in Texas. (Does it matter that (a) comes before (b)?)

I have no doubt, Radnofsky notwithstanding, that a court here or in Texas would give short shrift to any argument that section 32 (b) either outlaws or frustrates marriage. The fun part is standing in this socially necessary conclusion to watch the “plain meaning” and literalists torque things around to fit. Paragraph (b) is a mess: after all, once you’ve eliminated all the marriage-like unions that are “similar” to marriage, you’re forced pretty close to marriage itself; and it’s not clear how the “identical to” can save you. All of which goes to show you, perhaps, that being discriminatory in a Bill of Rights isn’t as easy as you might think.

Full post as published by Slaw.ca on November 28, 2009 (boomark / email).