Thanks to Dan, Jaya, and everyone else at Concurring Opinions for inviting me to join its distinguished guest-blogging ranks. I’m hoping to blog about a number of procedure-related topics this month, but I have to begin with an issue that hits even closer to home…
News out of Texas suggests my marriage is no longer valid. My wife and I were married there seven years ago, but language in a 2005 amendment to the Texas Constitution (designed to forbid gay marriage) may have brought a premature end to our state-sanctioned union — and to the entire institution of marriage in the State of Texas.
The argument that marriage is now illegal in Texas has been put forward by Barbara Ann Radnofsky, a Houston lawyer and Democratic candidate for attorney general. (See here, here, here, and here.) The 2005 amendment defined marriage to “consist only of the union of one man and one woman.” But subsection B of the amendment provided:
“This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”
As I understand the argument, here’s the problem: Marriage itself is a “legal status identical or similar to marriage.” Ergo, marriage is something the State of Texas “may not create or recognize.”
Radnofsky calls the language in subsection B a “massive mistake” and accuses her opponent, Texas A-G Greg Abbott, of being “asleep at the switch” when the amendment was drafted. She writes:
“In our justice system, when language is clear, the courts are not permitted to go behind the clear language to consider intent. It doesn’t take an expensive law degree to understand what this clause means. … The clear language in B creates turmoil and breeds litigation. The solution lies in either a new constitutional amendment (our Constitution has hundreds of them) or massive judicial activism to take clear language and reword it.”
I for one will be watching with interest. It may mean that my (ex-?) wife and I will have to re-marry in a state where the institution is still legal (but it won’t be the same if we can’t have barbecue from Joe Cotten’s at the reception).