Thursday, November 10, 2005

More on Gay Marriage Bans...

The title link goes to a blog by John Ichikawa. I came to it through a post by another blogger, Wesaturtle, whom I became exposed to via Fazed. Now that the circle is complete, lets get to the point. Jonathan's blog post deals with a law just passed in Texas banning gay marriage. The language of the Texas state Constitutional Amendment indicate on their face that it bans all marriage. I posted a comment to his post detailing how this probably isn't the case. the language indicates that marriage is constitutionally defined in Texas as between a man and a woman. The following subsection states explicitly that no governmental entity in Texas may acknowledge a marriage that does not fit the definition in the prior subsection. This goes back to my repeated rebuke of limitations on definitions of marriage. Under cases like Loving v. Virginia and Lawrence v. Texas, its more likely than not that a future panel on the United States Supreme Court could invalidate these restrictions under due process and equal protection.

Please don't forget to read "The Divide Destroying Democracy" and promote my use of alliterations as titles.

2 comments:

Jonathan said...

The following subsection states explicitly that no governmental entity in Texas may acknowledge a marriage that does not fit the definition in the prior subsection.

This is just false. If the subsection in question had stated, "no governmental entity in Texas may acknowledge a marriage that does not fit the definition in the prior subsection", then what you wrote would be true (although it's hard to make sense of what would be a marriage that doesn't meet the definition of marriage). But the facts are different, and what you've said is false. It doesn't state explicitly what you say it explicitly states.

Indeed, since you've clearly read my posts and have at least a working familiarity with the issue, it's reasonable to suppose that you know it's false, which makes your false statement a lie.

"The state nor any subdivision of the state shall recognize any institution similar or identical to marriage."

That does not explicitly mention marriages that fail to meet the definition of marriage. You may think that the reasonable judicial interpretation of the amendment is the one you describe. I happen to disagree, but hey, that's a reasonable debate. But when you come out and say the statute explicitly says something like this, when it does not explicitly say so, and it's exactly what's at issue in the discussion, you're not engaging in reasonable debate: you're lying to your readers.

The Donnybrook said...

Lets take a walk down statutory interpretation lane. This usually makes little sense to those who have not had any exposure to the way legislatures write laws. It doesn't necessitate legal training, but you have to realize that much of the language is passive voice, and underinclusive. So lets disect the language.

Section 32, subpart (a), states, "Marriage in this state shall consist only of
the union of one man and one woman." This clearly defines marriage, and leaves no question as to how the state will continue to define marriage in the constitutional context.

Section 32, subpart (b), states, "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage." This part states what jurisdictions may not do. The important thing here is the juxtaposition of language which I believe everyone is getting hung up on. Jurisdictions within the state may not recognize or create any legal status identical or similar to marriage. This language presupposes that marriage already exists in the form defined in subpart (a), and then specifically forbids any jurisdiction in the state to modify or otherwise alter what they recognize as marriage.

The definition comes first to lay out what is permitted. After the definition, subpart (b) then specfically states what is not allowed. The fact that marriage is referred to in subpart (b) on its own, standing freely, indicates that it relies on the definition of subpart (b). The modifying language before it, "identical or similar", indicates that states may not recognize any other legal union other than the constitutionally defined union in subpart (a). I reiterate my point that this amendment does not mean the end of all marriage, just the end of any jurisdiction recognizing anything other than the constitutionally defined union of marriage. Precisely what my post discussed.