Texas Bans Marriage

Or rather its looking like we are about to. Just one of the many interpretations of the vague language of Texas's prop 2, coming up for vote on November 8th is that it actually prohibits the state of Texas from officially recognizing any marriage at all.

Prop 2:

The constitutional amendment providing that marriage in this state consists only of the union of one man and one woman and prohibiting this state or a political subdivision of this state from creating or recognizing any legal status identical or similar to marriage."

The interpretation goes something like this:

Marriage in Texas is defined as X. This state (Texas) is prohibited from recognizing or creating any legal status identical to or similar to X.

X of course being "one man and one woman." Its not a bizarre interpretation of the words either. In fact its a logical one. Without knowing the specific intent of the amendment, and the political climate surrounding it, the obvious interpretation of the amendment is that Texans are attempting to ban state sanctioned marriage. Which of course is a libertarian's dream if it actually played out that way. The problem is precisely that the vague language is up to interpretation and few judges in the near future are likely to be unaware of the political climate surrounding the amendment.

Imagine the state of Texas being sued for issuing marriage licenses or for recognizing marriages as marriages that have long existed in Texas. Which brings me back to the question exactly what is the intent of Texas's prop 2? Afterall if they simply wanted to ban homosexual marriage why not keep it simple - Unions between same gender couples will not be recognized as marriage in the state of Texas, or perhaps "only marriages between one man and one woman will be considered legal in the state of Texas," or they could have been even simpler and gone with their original plan - "marriage in this state consists only of the union of one man and one woman."

Why add all the extra confusion about recognition of legal statuses? Why? Because Texas like many other states wants to look like its doing something legitimate when and if the time comes that it feels the need to violate the U.S. constitution in regards to recognizing contracts and licenses from other states.

From the U.S. Constitution:

Article IV. - The States

Section 1 - Each State to Honor all others

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section 2 - State citizens, Extradition

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

This is the Texas State Legislature's own explanation of the amendment:

Brief Explanation:

HJR 6 would provide that marriage in Texas is solely the union of a man and woman, and that the state and its political subdivisions could not create or recognize any legal status identical to or similar to marriage, including such legal status relationships created outside of Texas.

In short the Texas Legislature wants the state of Texas to be able to not recognize marriages that are recognized, and licensed by other states when and if they decide for some reason that they do not approve of those marriages. This applies not only to homosexual marriages but to polygamous/poly marriages (in the unlikely event another state chose to license them), common law marriages, marriages involving minors (these are typically parental consent marriages), and in theory could apply to any heterosexual marriage though they are not likely to go after those.

What they may in fact succeed in doing is at least temporarily nullifying any state recognized status that can be called marriage in Texas. Which though I am sure they would quickly fix the problem should it arise it would at least be amusing to see the chaos that would ensue should a lawsuit successfully challenge the state's capacity to issue marriage licenses. For the most part its a fantasy of poetic justice. The state in attempting to legislate majority biases and fears regarding the devaluation of the institution of marriage accidentally throws every marriage in the state into legal jeopardy.

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Nope. Common law has a

Nope. Common law has a fail-safe concept that says that every part of a law has to have effect. The interpretation than the state cannot recognize marriage would negate the first part, which defines what marriage is. Therefore, the courts would have to look for a different meaning to the second part. You can't prohibit the creation of what the same law creates.

Also, this wouldn't ban

Also, this wouldn't ban common law marriages, as long as that marriage was between a man and woman. It would prohibit polygmous marriage (more than one man or woman) and would also seem to have the effect of prohibiting the state from recognizing marraiges to minors (missing a man or a woman).

The amendment doesn't create

The amendment doesn't create anything actually. It is legally defining the word "marriage" for the state and not creating any sort of actual status, and thus your point is completely invalid. The amendment could easily be interpretted to ban common law marriages because of the vague language it uses. Certainly that is not its framer's intent, and it will not likely be interpretted that way, but it is a possible outcome of the amendment.

Also the state defining what

Also the state defining what something is, is not the same as the state officially recognizing the legal status of that thing. You seem to have confounded the term "recognize" in this context. When I spoke of the state recognizing marriages I was talking about actual marriages not the broad concept of marriage. Yes they defined the broad concept of "marriage" for the state of texas. The amendment does not create or call for the state to "recognize" a specific legal status nor any actual specific marriages.

Imagine for example that the law was about sodomy, and it first started by defining sodomy:

Sodomy in the state of texas shall consist of x, y, and z.

And then it followed by banning the practice it just defined:

The state of texas is prohibitted from legalizing any behavior identical to x, y, or z.

You could say in this context that the state had just "recognized" the term sodomy (though it would be more accurate to say they defined it), but that would be entirely different from the state officially "recognizing" sodomy as having a protected legal status. It would also not create a special legal status that could be called "sodomy."