Category Archives: Law: Con Law: Marriage

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?

Posted in Law: Con Law: Marriage | 6 Comments

Textbook Buying as a Political Act

Law students thinking of buying their textbooks online might want to consider this way of doing a bit of social activism at the same time:

California College Democrats launched Textbooks for Change, an innovative program that leverages the Amazon Associates Program, and thousands of student textbook purchases, into cash for California's Courage Campaign and their ongoing efforts to repeal Prop 8.  By simply using the link on Textbooks for Change as the portal to Amazon and buying textbooks through the online merchant, approximately 7% of the purchase price goes to support ongoing efforts for marriage equality in California.

Of course, this only works if you support marriage equality….

Posted in Law School, Law: Con Law: Marriage | Leave a comment

It’s “Freedom to Marry Week”

I've just learned that someone has proclaimed this Freedom to Marry Week:


Our kids will look back on this the way we look at the First Civil Rights Movement.

Posted in Law: Con Law: Marriage | Leave a comment

It’s Long (Awaited), But Will It Be Long-Lasting?

Text of California Supreme Court's lengthy 4-3 decision stating that same-sex couples have a state right to marry.

I think there's a very real likelihood this could get overturned at the polls in the next election. Even so, I would imagine — but haven't researched the question — that marriages entered into before that happens would remain valid.

Expect the price of flowers to be high in June.

Posted in Law: Con Law: Marriage | 7 Comments


The New York Times has an obituary today of one of those unintentional American heroes, Mildred Loving, one of the plaintiffs in Loving v. Virginia, the case 1967 decision in which the US Supreme Court struck down state miscegenation laws as a violation of the Due Process and Equal Protection clause of the Constitution.

As the NYT story notes, last year on the 40th anniversary of the Supreme Court's decision, Ms. Loving (could there ever be a more aptly named plaintiff?) issued a statement in support of gay marriage.

Ms. Loving's death is moment to reflect on how ordinary people can influence major changes. It's also a reminder of how different today's Supreme Court is from that of 1967. The decision for the Lovings was unanimous. Does anyone actually think we'd be better off today if the 1967 court had ruled differently?

Some choice quotes from the Supreme Court's 1967 opinion, ripped slightly out of context as the 14th amendment, like all the civil war amendments, was understood to be first and foremost about ensuring black Americans full citizenship:

The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources “cast some light” they are not sufficient to resolve the problem; “[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among `all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.”

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Posted in Law: Con Law: Marriage | 1 Comment

Someone Knows The Answer to This Question About the Koso Statutory Rape Prosecution

Law professors tend to specialize. As a result, there are lots of legal things I don’t know much about, and I try not to write about them. And there are lots of legal things I think I know something about, but I usually feel I don’t know them well enough to opine publicly. And on those few subjects I think I know best, I tend to want to write fairly long and detailed articles, not blog posts. As a consequence, I don’t tend to post legal (as opposed to political) commentary on this blog. The major exception so far has been the torture issue, which so offended me that I studied up on it to the point where I felt able to write about it, even though I don’t currently have plans to publish on it in law journals.

But here’s an exception to my rule, this time on a subject I know I don’t know well: family law (and its criminal law counterpart). It’s just that I’m curious about it.

The New York Times ran a story yesterday about a statutory rape charge being filed in Nebraska against one Matthew Koso, who is part of a couple (he: age 22, she: age 14) legally married in Kansas. The article doesn’t mention the constitutional implications at all, nor it seems does much of the blog commentary, and I’d like to know why. (Just keep in mind as you read this that I’m prepared to be told that any of the following assertions is wrong.)

I would have thought that it was settled that under the privacy jurisprudence in the Griswold line of cases (striking down a state rule banning sales of contraceptives to married persons) no state could criminalize sex between consenting married adults, even due to their ages. I presume therefore that Nebraska law doesn’t recognize the validity of the Kansas marriage, but I would have thought that this failure to recognize would violate the full faith and credit clause of the constitution:

“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.”

In the so-called “Defense of Marriage Act” Congress purported to exercise its authority under the Full Faith and Credit Clause…to allow states to deny any credit to out-of-state marriages between same-sex couples. But–even assuming that this statute conforms to the Full Faith and Credit Clause (I’m dubious)–it’s clear that the DOMA doesn’t apply here. So what is Nebraska’s authority for denying the validity of the Kansas marriage? Is it ‘public policy’? Can that suffice to void a constitutionally protected relationship? Or is it some idea that minors don’t have the same constitutional right to marry as adults, and this trumps the adult’s right not to be prosecuted for marital sex?

I’m presume there’s some good reason why the couple’s defenders, including their lawyer, are not making these constitutional arguments. Alternately, they might be making them but it’s not getting reported. Or, perhaps the prosecution iis to be based on a res ipsa loquitor claim regarding pre-marital sex?

Like I said, family law is not my field, and the facts are not utterly clear here, but I bet someone reading this either knows the answer or knows where it can be found.

Posted in Law: Con Law: Marriage, Law: Constitutional Law, Law: Criminal Law | 18 Comments