The State of Marriage in the State of Texas

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.


  1. I remember wondering about this, for about 3 minutes, when I was teaching at UT-Austin. Here is the best I could come up with (I acknowledge it is imperfect, and that it accords this rubbish a dignity it does not merit):

    32(a)This incorporates by reference pre-existing Tx law, and imposes on the legislature a disability with respect to changing it. As usual, the new disability is presumed to have prospective effect only unless there is some positive reason to think the legislature intended it also to have retrospective effect.

    (b)This does not state pre-existing law; it is new law. Different-sex marriage already existing, it is immune to the disability, however we interpret the weird ‘identical.’

    (c)Why is 32 b there? Because some states created disabilities on creating relationships similar to, or tantamount to, marriage. (There are various formulations out there.) I conjecture that some hate-monger in Austin worried that a future, humane, legislature might simply extend marriage, and this extension would not be ‘similar to’ marriage, but marriage. Unable to muster support for a constitutional change, they might just legislate, and argue that marriage itself is not caught by the weaker language. But of course that last move is a mistake. The purpose of the lesser disability was to prevent a legislature trying to come as close as it could to recognising sex-neutral marriage. The closest one can come to doing X is to do X.

    (d) Absurdity is no oddity in the Texas Constitution. Consider, for example, this provision in the Texas ‘Bill of Rights’:

    “Sec. 4. RELIGIOUS TESTS. No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.”

    This is just as absurd as 32 b. Naturally, it is unenforceable under the US Constitution. But it is also politically unrepealable in the Great State of Texas.

    (e) Why do lawyers allow themselves to be complicit in such nonsense and inhumanity? Freud knew: “It is always possible to bind together a considerable number of people in love, so long as there are other people left over to receive the manifestations of their aggression.”

  2. Didn’t someone once write? say? that Texas is a state of mind?

    Given what we now know about the problematic qualities of some states of mind, even apart from Freud, some of what comes out of Texas could be seen as evidence that Texas, as a political entity, suffers from some form of constitutional malady analogous to X-ia [where X stands for one’s preferred form of recognized psychiatric malady from a DSM-IV].

    That s.4 of the Texas Constitution is remarkable. No atheists or non-theists allowed? What about pantheists? Those who believe in the existence of a pantheon with more than one Supreme Being, all of whom are not part of the same entity? Yyes I’m (almost) being careful not to offend (too much). The section does say “a Supreme Being” not “the Supreme Being”. It doesn’t matter what you believe in, so long as you believe? Content is irrelevant? So a theology with a Devil figure as a Supreme Being would qualify?

    Thanks for that.


  3. Not to get too far off topic, which was the weird marriage provision, but once we look at the constitutional issue:

    i) Texas will not allow a Buddhist to hold public office (at least would allow a Buddhist to be barred from public office for his/her religious beliefs) but would protect a Wiccan or Satanist.

    ii) the Supreme Court of Canada’s test for protection of religious belief is sincerity only. As David C put it, it doesn’t matter what you believe. Content is indeed irrelevant. Fortunately the Charter protection of religious belief is subject to reasonable limits, both under s. 1 and in being co-interpreted with other named freedoms.

    iii) when the Canadian government raise the age of consent to 16, it had to put in an exception for people who were already married before that age. Even the age of consent at 14 ran into the laws of some provinces that allowed for marriage earlier.

    So when you combine religious belief (particularly of a very strict nature, not to say intolerant because extremism in the pursuit of virtue is no vice…) with views on marriage, one gets logically toxic drafting, at the very best (and the Ugandan law that Simon linked to, at the other end of the spectrum.)

    P.S.the captcha for this post is ‘2.1 nannying’ – sounds like an attempt to filter the social media, to me.

  4. Canada’s very recent and latest judicial foray into the land-mined terrain of law, religion, and marriage (and marriage’s consequences) – which I’m sure is heading up the judicial pecking order – is the British Columbia Supreme Court’s Bentley v. Anglican Synod of the Diocese of New Westminster, 2009 BCSC 1608.

    The first few paragraphs summarize the dispute.

    [2 The plaintiffs are 22 in number. They are Anglican clergy and lay leaders from four incorporated parishes geographically situated in the Diocese of New Westminster (the “Diocese”). The plaintiffs are also trustees of their respective parish corporations, and bring the current proceedings in that capacity.

    [3] The defendants are the Anglican Synod of the Diocese of New Westminster (the “Diocesan Synod”) and Michael Ingham, the current Bishop of the Diocese.

    [4] These proceedings arise from Bishop Ingham’s decision in June 2002 to accept the recommendation of the Diocesan Synod that he authorize a rite for the blessing of same-sex unions. The plaintiffs view this as an abandonment of Christian Scripture, and their respective congregations have left the Diocese as a consequence. They contend that church properties in their four parishes are held pursuant to a trust for “historical, orthodox, Anglican doctrine and practice”, and that the blessing of same-sex unions is inconsistent with such doctrine and practice. Accordingly, the plaintiffs seek to have the church properties turned over to their congregations pursuant to the exercise of this Court’s inherent jurisdiction over trusts and charities.

    [5] The defendants counterclaim for a declaration that the plaintiffs are not entitled to possession or control of the properties in question, and other ancillary relief.

    As to who won, Prof. Russ Brown wrote on the University of Alberta Faculty of Law Blog, “it ain’t the dissident parishes.” He also wrote – and this is the tie-in to John G’s comment and mine about the content of the religion being irrelevant:

    In previous posts regarding a similar dispute elsewhere, I predicted this outcome (and think that, as a matter of ecclesiastical structure and organization within that religious community, it is rightly decided). I did not, however, predict that the court’s reasoning would include an explicit inquiry into a particular religious denomination’s doctrine in order that the court might decide for the faithful what questions do and do not implicate the tenets of their faith in a truly “fundamental” way. That sort of thing – I would have thought – is not readily justiciable, and is best left to the religious community itself to sort out in its own way. Kelleher J. was not such a timourous soul, however.

    Perhaps other religious authorities might take note and in future consider referring their centuries-old, persistent and difficult ecclesiastical disputes to the British Columbia Supreme Court for resolution.

    Interesting times ahead. Sounds to me like, in this particular case, perhaps because the issue was over the ownership of property in the province, the judge decided that it open to the court to get into the question of who can dance with whom. And how.

    Interesting times ahead.


  5. There could be a whole lot of interesting work for trust and not-for-profit sector lawyers as various loosely-knit organizations try to establish what the lines of authority permit when the knitting becomes frayed.

    I am inclined to agree with the Alberta blogger that the courts are better able to deal with property disputes (like the BC Anglicans case) or separation contract disputes (like the ‘get’ case in the SCC last year) than on the importance of any particular religious doctrine within a faith. People have been burned at the stake, and more recently shunned and exiled, for what appear to outsiders to be very minor differences on such points.

    Just as the courts avoid deciding whether an alleged charitable purposes are for the public benefit, preferring just to slot them into ready-made categories, so too they should avoid deciding if an alleged religious principle is more important than another in a non-legal setting.