Yes, you read that right, and NO, it’s not a typo — though I’ll admit that on a quick read, most people would assume I meant “Texas Bans GAY Marriage” – and was just being too hasty in my typing. Well, read on for a bit of deliciousness.
If Texas were a family member, it would be the notoriously curmudgeonly, often paranoid, occasionally drunk uncle who you only see at family get-togethers and like it that way, because he’s always spouting off at full volume about secession and tyranny and blah, blah, blah. There’s no doubt that what the state of Texas intended to do was to ban gay marriage. But due to the sloppiness and overreach of the people who drafted the 2005 constitutional amendment – and the inattention of all the Texas legislators who no doubt rubber-stamped it as quickly as they could, to prove they weren’t gay-sympathizers, LOL – what the fine folk in the Texas statehouse appear to have done is to ban ALL marriage, period. The Fort-Worth Star-Telegram has the details:
Texans: Are you really married?
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 Texas Legislature and overwhelmingly ratified by Texas voters, declares that “marriage in this state shall consist only of the union of one man and one woman.” But the trouble-making 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.” (emphasis added)
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.
Now, in practice, I seriously doubt that anyone married between 2005 and today will have to get “re-married” to make their status officially legal — but it could be interpreted that way. The body doing the interpreting, of course, would be the Texas Supreme court (if it even gets that far), or, I suppose, the US Supreme Court. But I seriously doubt things will go that far. To start, getting to even the Texas Supreme Court would require a team of attorneys to work, probably pro-bono, to bring this case to trial. When they lost – something almost certain to happen – they would have to be willing to appeal the decision to be able to bring it before higher court(s). I just don’t see even the most committed gay activists (or anyone else) seriously being willing to invest the resources necessary to force this issue.
But it’s awfully fun to entertain the notion that, if such a person or group were to be willing and committed enough to do so, they might not be able to be easily dismissed. Instead, what’s far more likely is that gay activists will – quite logically and reasonably – use this to spotlight the utter arbitrariness and inherent unfairness of current marriage laws and especially the “one man, one-woman” movements that are sweeping the homophobic in all states, but especially in places like God-fearing, gay-hating Texas.
And since these fine, upstanding homophobes were so overzealous in their striving to ban teh gay and make gays and lesbians second-class citizens that they actually amended Texas’s constitution (so those sneaky gays couldn’t challenge it in court as “unconstitutional”), they now have a much bigger problem on their hands trying to UN-do what they too-hastily DID the first time. This can’t be un-done by a court…because courts are bound to follow the law. And if there’s a reasonable legal challenge about the meaning or applicability of a given law, only the Supreme Court can address and interpret it (raising the even more hilarious specter of “conservative activist judges” stepping in to “legislate from the bench” to re-write the interpretation of the law which is pretty clearly (if sloppily) stated). The only way to un-do what they’ve done would be to have the state legislature draft another re-amendment to the Texas constitution, or have a constitutional amendment “clarifying” the original language put to the voters of Texas.
All of which makes me enormously entertained for however long it takes to “straighten out” (pun intended) their little “marriage problem” in the great state of homophobia Texas. Almost as much as I’m entertained by the thought that, arguably, it is currently against the law to get married in Texas. Comedy.