Berman & Asbel, LLP

Did Texas accidentally ban marriage for everyone?

While perusing my Facebook newsfeed, I found an item about the Texas same-sex marriage ban posted by Pennsylvania State Senator Daylin Leach.  With a few searches, I found an article - Texas' gay marriage ban may have banned all marriages from the Fort Worth Star-Telegram.  Back in 2005, an amendment to the Texas state constitution was passed which, as many states have done, provides this definition of marriage: "Marriage in this state shall consist only of the union of one man and one woman."  That part seems straightforward.  Texas then took another step as this constitutional amendment contains a provision which says, "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."

The apparent intent of this additional language was to prohibit alternatives for same-sex couples such as civil unions or domestic partnerships.  However, some attorneys are already arguing that whatever the intent, the plain language of this provision means something else - a complete ban on all marriages.  While it may seem obvious that was not the intention of the provision, the first rule in interpreting legal provisions is to look at the plain meaning of the text.

Barbara Radnofsky, a Houston lawyer and Democratic candidate for Texas Attorney General blames the Republican incumbent Attorney General Greg Abbott for a major error in allowing this to happen.  I am not aware of heterosexual couples being denied a marriage license yet as a result of this language but Radnofsky says that a new amendment may be necessary to fix this problem. 

Meanwhile, an article in the Dallas Morning News reports that a Texas state District Judge has ruled that the above-mentioned ban on same-sex marriage violates the Equal Protection clause in the United States Constitution.  In that case, two men from Texas traveled to Massachusetts and were married there in 2006.  This year, one of the men in the couple filed a divorce action in a Texas court.  The aforementioned Texas Attorney General Greg Abbott intervened in the case to argue that a Texas court cannot grant a divorce because Texas does not recognize same-sex marriage under its 2005 constitutional amendment. Judge Tena Callahan disagreed with Abbott and struck down the amendment.  Appeals will go on for some time.

One of Abbott's criticisms of Judge Callahan's ruling was that she made that ruling despite the fact that the 2005 amendment passed with 75 percent of the vote.  Abbott seems to be forgetting that constitutional protections of individual rights and the independence of the judiciary are a check on the rule of the majority in our constitutional system.  Many arguments may be made for and against the validity of the Texas provision but the percentage of the vote it received is not a particularly good one.

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