Tuesday, November 08, 2005

Proposition 2

A while back in another blog, I mentioned a constitutional amendment purportedly dealing with "gay marriage." Well, the damn thing passed.

Here's what the voters of Texas approved today:

SECTION 1. Article I, Texas Constitution, is amended by adding Section 32 to read as follows:
Sec. 32. (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.

Yup. You read it right. The plain language of the amendment prohibits the state from attaching any legal significance to the institution of marriage. Not just gay marriage, but any legal status "identical or similar to marriage."

Do they know what the word "identical" means? Here's a hint-- It mean "the same." Marriage is, by definition, identical with marriage. And marriage, by definition, is "the union of one man and one woman." And anything that resembles marriage but deviates from the definition is "similar to marriage."

One of the primary rules of construction is that if the plain language is unambiguous, you don't look at legislative intent. Which means, in a case like this, that you look only at what they actually said, not what they meant to say. And in this case, the plain language of the amendment defines marriage and then prohibits the state from affording marriage (or anything resembling marriage) any legal status. (There's another rule of construction that says that you presume that the legislature did not intend an absurd result, but what's the fun in that? And besides, what's so absurd about the state declining to recognizing marriage?)


I wonder.

(My first thought about this was that it's an amusing example of legislative ineptitude, but wouldn't really change anything because marriage is a fundamental right protected by the United States Constitution. On further reflection, I'm not so sure. The Supreme Court of the United States held in Loving v. Virginia (and other cases) that the right to marry, at least as it has traditionally been understood, is a fundamental right protected by the Fourteenth Amendment. But the plain language of the amendment wouldn't interfere with people's right to marry; it would only prohibit the state from affording marriage any legal significance.)



Blogger Laurie said...

I love it when you talk legal.

Tuesday, November 08, 2005 10:38:00 PM  
Anonymous Susan in St. Paul said...

Damn Laurie, you must be in heaven being around lawyers all the time.

Wang-as I asked on the previous post, how will this affect things like insurance for married couples, inhertances, pensions and other situations where legal signifacnce of marriage might be important? Also if marriage has no legal significance how do marriages differ from other forms of partnerships?

Wednesday, November 09, 2005 12:42:00 AM  
Anonymous jiminy cricket said...

I was afraid that I went to sleep and woke up in December...and Thursday....wow....not much time to catch up on Christmas shopping...really seems warm for December....82? But 2005...the year's right...right?

Wednesday, November 09, 2005 10:44:00 AM  
Anonymous Sophmom said...

Just goes to show ya how fudged up things get when evil-doers try to legislate hate. Heh heh. Nice post, Wang. Glad to see you back at it. Hope the homestead is recovering from the storm.

Wednesday, November 09, 2005 2:11:00 PM  
Blogger Jack said...

Jimint Cricket! I wonder why that came out with a December date stamp. I guess I'd better go back and fix it.

Wednesday, November 09, 2005 4:07:00 PM  
Anonymous Anonymous said...

Now this is the kind of Wang that I look forward to. No one interprets the absurdity of our legal system / government like you do. Thanks for the Wang Chi fix!

Wednesday, November 09, 2005 4:56:00 PM  
Blogger Jack said...


In real life, I'm sure this will be construed to mean what it was sold as meaning--the state won't recognize gay marriage, polygamy, interspecies unions, etc., nor will the state create or recognize some marriage-like alternative. I doubt that it'll get extended beyond that.

It gets a little tricky when you have people trying to work out a marriage-like relationship on their own using regulat partnership and/or contract law, but I'm pretty confident that the court's will limit the application of the amendment to non-conforming marriage or state sponsored marriage alternatives like "civil unions."

Thursday, November 10, 2005 9:24:00 AM  

Post a Comment

<< Home