AUSTIN, Texas—When Texas voters four years ago approved a state constitutional amendment prohibiting same-sex marriages, they may have accomplished more than they set out to do. The amendment, which some legal and language scholars say also eliminates heterosexual unions, looms large among the issues state attorney general candidates will have to address during their 2010 campaigns.
The problem—called to the public’s attention shortly after the amendment’s passage but summarily swept under the rug—arises from two brief snippets in the text. “Marriage in this state shall consist only of the union of one man and one woman” seems to be a straightforward definition of Texas’ stand on the matter. On its own, the phrase should have been sufficient to settle the gay marriage debate. However, a carelessly worded subsection designed to ensure Texas did not become mired in a potential quagmire if same-sex couples who married in other states sought legal status in Texas pulled the rug from under heterosexual marriages, too: “This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”
As linguist Mark Lieberman wryly noted on the University of Pennsylvania’s Language Log, “Whatever marriage may be, it surely is ‘a legal status identical or similar to’ itself.”
The situation has annoyed and worried Houston attorney and Democratic state attorney general contender Barbara Ann Radnofsky ever since. She said “careless lawyering” installed the ban during the tenure of current Texas Attorney General Greg Abbott, who supported the amendment even though the flaw should have been abundantly apparent to him. The loophole hasn’t resulted in any major legal scuffles yet, but Radnofsky is certain it’s only a matter of time before someone ensnarls the courts in a battle over inheritance, insurance claims or divorce.
“You do not have to have a fancy law degree to read this and understand what it plainly says,” she told the Fort Worth Star-Telegram. “Whoever vetted the language in [the amendment] must have been asleep at the wheel” in order to allow “an error of massive proportions.”
Worse, she said, any marriage in Texas is at risk—not only those accomplished since the amendment took effect in 2005.
“It quite arguably goes retroactive,” Radnofsky told PoliticsDaily.com. “…[M]y husband of 27 years and I still love each other very much, but there may be considerable doubt over whether we’re still married.”
Radnofsky, who retired in 2006 from a high-profile position with a powerful Houston law firm, said the only way to remove heterosexual marriage from legal limbo is to modify or replace the 2005 law with another constitutional amendment. Her remarks incited a nascent battle in the state, where both conservatives and liberals see an opportunity to fix what they view as a grievous error. Social conservatives already have begun rumbling about the benefit of mounting a new ballot measure that not only will clarify the same-sex union ban, but also to make heterosexual divorce more difficult. Supporters of same-sex unions, on the other hand, see another chance to convince Texas voters they made the wrong decision in the first place.
Abbott, for his part, is unapologetic.
“The Texas Constitution and the marriage statute are entirely constitutional,” Abbott spokesman Jerry Strickland told the Star-Telegram, evidently unaware of the circular nature of the AG’s position, at least as he expressed it. Through Strickland, Abbott’s office declined further comment.
Conservatives stand firmly behind Abbott.
“[Radnofsky’s position is] a silly argument,” Liberty Legal Institute President Kelly Shackelford told the Star-Telegram, adding that any challenge to traditional marriage based on the wording of the amendment would have “about one chance in a trillion” of success.
While acknowledging the amendment probably won’t result in the wholesale abolition of marriages in Texas, Radnofsky stands by her conviction that court action is inevitable.
“This breeds unneeded arguments, lawsuits and expense which could have been avoided by good lawyering,” she said. “Yes, I believe the clear language of [the amendment’s troublesome subsection] bans all marriages, and this is indeed a huge mistake.”
