Advocates of a 'plain meaning' approach to constitutional interpretation may have to conclude that Texas accidentally banned all marriage, as described in this McClatchy report, Texas' gay marriage ban may have banned all marriages
Barbara Ann Radnofsky, a Houston lawyer and Democratic candidate for attorney general, says that a 22-word clause in a 2005 constitutional amendment designed to ban gay marriages erroneously endangers the legal status of all marriages in the state.
The amendment, approved by the Legislature and overwhelmingly ratified by voters, declares that “marriage in this state shall consist only of the union of one man and one woman.” But the troublemaking phrase, as Radnofsky sees it, is Subsection B, which declares:
“This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”
Architects of the amendment included the clause to ban same-sex civil unions and domestic partnerships. But Radnofsky, who was a member of the powerhouse Vinson & Elkins law firm in Houston for 27 years until retiring in 2006, says the wording of Subsection B effectively “eliminates marriage in Texas,” including common-law marriages.
She calls it a “massive mistake” and blames the current attorney general, Republican Greg Abbott, for allowing the language to become part of the Texas Constitution. Radnofsky called on Abbott to acknowledge the wording as an error and consider an apology. She also said that another constitutional amendment may be necessary to reverse the problem.
“You do not have to have a fancy law degree to read this and understand what it plainly says,” said Radnofsky, who will be at Texas Christian University today as part of a five-city tour to kick off her campaign.
Being given to a more of a purpositive approach, I'd be willing to invoke the infamous Holy Trinity decision, and say this clause meant what the voters obviously thought it meant. But would someone who believed in a pure 'plain meaning' approach — like Justices Thomas and Scalia claim to — be able to reach that conclusion?