A Problem for ‘Plain-Meaning’ Advocates

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?

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6 Responses to A Problem for ‘Plain-Meaning’ Advocates

  1. howard says:

    All marriages should be banned in TX until there is equality for homosexual couples, and for that matter, people in polyginist marriages, a normal arrangement in many areas of the world. Being a homosexual man in a 10 yr long term relationship in FL, I would love to be able to marry. Unfortunately, I cannot. So nobody else should be able to either. Seriously. It makes me sick that so many can go about being in a state of marriage knowing what marriage means to 10% of the population. When black Americans were historically banned from enjoying Miami beaches or enrolling as students at the University of Miami, I’m sure they felt that nobody should have been allowed on the beaches or to study at such an institution as UM until all were afforded the same rights as everyone else. I have a profound respect for the people I have encountered in life (quite a few) who are able to marry but who choose not to do so in a form of protest until their homosexual brothers and sisters have the same rights they do. When other friends speak about their marriages, it hurts because they are promoting an institution of exclusion and they know it but don’t seem bothered by it. They gain all the benefits, boast about how nice it is, and seem clueless that homosexuals in FL today feel. The plain meaning clearly does ban all marriages in TX and that seems like a step in the right direction until all people have similar rights.

  2. Rhodo Zeb says:


    Go to Mass or whichever state allows gay marriage these days (its hard to keep track sometimes).

    Get that certificate. Then go home and be patient, but also get living wills (which I believe will help to seize back some of those lost rights).

    The Full Faith & Credit Clause still exists…

  3. Vic says:

    It’s not that simple, unfortunately. Florida does not recognize same-sex marriages by FL Constitutional amendment, and the Federal Defense of Marriage Act (28 USC 1738C) backs FL up. It does no good to enter into a same sex marriage where allowed if you also live in a state that doesn’t recognize them.

    Can’t a same sex couple enter by contract effectively a marriage and give each other all the same rights as a “real” marriage? I’m no family law expert, and I know that it wouldn’t be the same as actually fixing the laws, but can’t a same sex couple get pretty damn close to all the usual rights by other means?

  4. michael says:

    I too am no family law expert, but my understanding is that the contract option is not really anywhere as good. Examples include many things involving third parties, e.g. access to the terminally ill in hospitals; pensions; social security disability and other government benefits; adoption / tenancy in common etc. etc. etc.

  5. Rhodo Zeb says:

    Well, first of all I must admit that my entire background in this area comes from a lecture back when I was a first year, over a decade ago, by an author of a work that assessed then-current legal trends and argued that marriage equality (as we now know it) was inevitable.

    The process has largely played out as expected. Some states have opened up marriage and people have gotten their certificates, and a heck of a lot of those people are living outside the states in which they are legally married.

    Vic is right about the law, but the analysis I heard way back then was that the DOMA and so called state-level mini-domas were an attempt at walling off claims under the FF&C clause. So for now DOMA is effective, but perhaps later it will be ruled unconstitutional.

    The wiki on this is not too bad:

    Vic, unfortunately the contractual arrangement doesn’t change all that much, other than creating a bunch of potential claims as per above 😉

    For instance, the case of an emergency hospital stay, I cannot imagine that the hospital would alter presumably clear policies based on someone (even if it were a lawyer) waving around a private agreement.

    This case of course is one of the saddest examples of the evil of the anti-fairness marriage laws. All the haters can do is hide it or ignore it. A loving couple is torn apart because once one partner enters the hospital and no longer is able to speak for him or herself, the other partner is legally walled off from helping, and may be completely removed from the situation by family members who suddenly have total control, regardless of the (personal, not blood) relationship between the family members and the incapacitated partner.

    It is sad, really, another example of the right’s impersonalized inhumanity.

    The outcomes in an adoption or succession, on the other hand, might be affected, as this seems a more traditional area where the FF&C clause is applicable. Who knows, despite the clear injustice of the example above this second approach might be more fertile ground through which to advance. I could perhaps imagine say an adoption when one spouse (oops sorry, ‘partner’) passes, and the two choices would be adoption as per Cali or Mass law by recognizing the marriage, or turning the child over to another states’ social services system, leading to a favorable judgment. But that’s just wild speculation.

    Still, getting the marriage certificate and backing it up with contractual arrangements is the best one can do right now. And it does position one properly to handle whatever may come.

  6. Vic says:

    Yeah, there’s probably a lot of areas that a K won’t reach. Another thought: (again, no expert on family law here), but FL (as I recall) allows adult adoptions. I’ve never looked into it, but I’ve always assumed this was for particular cases such as adopting a mentally handicapped adult.

    But if a gay adult adopted his or her partner, I wonder:
    -would it be allowed by the state
    -would it give rights such as hospital visitation, and intestate inheritance? Hmmmm.

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