The Texas State Legislature desperately needs new legislation drafters, or at least proofreaders and editors. And it needs to stop beating the dead horse of gay marriage. A recent flare up of controversy surrounding the state’s constitutional gay marriage ban suggests that the Legislature may have inadvertently banned all marriage.
In 2005, seventy six percent of Texas voters approved a ballot proposition to amend the State Constitution.[1] That amendment, now Article 1, Section 32 of the Constitution, reads:
(a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.
Recently, a candidate for State Attorney General stated that the amendment’s poor wording “eliminates marriage in Texas.”[2] Paragraph (b), according to the candidate, Barbara Radnofsky, poses the problem. Go ahead and reread the provision above, I’ll wait. The drafters apparently didn’t think it was important to include an exception for even traditional marriage, as defined in the PREVIOUS PARAGRAPH. Any “legal status identical or similar to marriage” of course includes any form of marriage, even the one-man-one-woman variety which drafters intended this provision to protect. They simply forgot to write something to the effect of, “except for marriage as defined in paragraph (a), . . .”
Political grandstanding? Probably. But is Ms. Radnosfsky right? Absolutely. Hell, a high school student could probably come up with a dozen more effective alternatives to the language in this amendment. But it seems that a lawyer who graduated at the top of his class from Baylor Law School couldn’t manage it.
What’s worse is the fact that critics pointed out the fatal vagueness in the amendment before voters adopted it. But rather than simply adding clarifying language or redrafting the 38-word amendment, supporters, including Kelly Shackleford (one of its drafters) and Governor Rick Perry rushed to its defense. This is the idiocy I cannot fathom. Why not simply reword it instead of making the language deficiencies out to be some sort of partisan political football?
Texas has been taking whacks at gays for quite some time, and as one might expect, it remains a heated political topic. A deeper look into state legislation reveals additional provisions which further muddy the water. Texas had made sex between members of the same gender a crime, until the U.S. Supreme Court struck down the statute in 2003.[3] In response to that ruling, the Texas Legislature amended the Family Code to specifically prohibit giving effect to “a marriage between persons of the same sex or a civil union in this state or any other jurisdiction.”[4] Section 6.204 of the Family Code not only obviates the new constitutional amendment, but more effectively accomplishes the task, even going so far as to prevent recognition of out-of-state same-sex marriages. So why the redundancy?
It seems that the politicians involved don’t care as much about accomplishing (efficiently or otherwise) specific policy objectives as they care about scoring political points. And apparently voters keep rewarding the behavior. Never mind that two provisions of the Family Code exist in conflict as to whether to give effect to out-of-state gay marriages (sections 6.204 and 1.103), obviously what we needed was ANOTHER anti-gay law. Except this time, someone got the bright idea to make it a constitutional amendment, rendering it much harder to repeal. Too bad they wrote it with all the skill of a Harlequin romance novelist.
While it’s no secret where I stand on the gay marriage issue, my point here isn’t to debate the ridiculousness of Article 1, Section 32 of the Texas Constitution (and it certainly is). My point is that perhaps we need to start vetting all new legislative language through an independent commission of professional writers . . . or 8th graders. Either would be an improvement.
1. David Crary, Texas Voters Approve Ban on Gay Marriage, WASH. POST, Nov. 9, 2005, available at http://bit.ly/70ZcvU
2. Dave Montomery, A Texas-Size Technicality: Marriage May Be Unconstitutional, FORT WORTH STAR-TELEGRAM, Nov. 18, 2009, available at http://www.star-telegram.com/668/story/1772513.html
3. Texas Penal Code § 21.06, titled “Homosexual Conduct,” made “deviate sexual intercourse with another individual of the same sex” a Class C misdemeanor. (http://bit.ly/6niMkj) Lawrence v. Texas, 539 U.S. 558 (2003) struck down the law on substantive due process grounds, under the 14th Amendment. One effect of this ruling was to create find that privacy regarding one’s sexual intimacy is a fundamental liberty protected by the Constitution.
4. Texas Family Code § 6.204. (http://bit.ly/5Iz6uQ) It is worth noting that opponents of Article 1 Section 32 cite Texas Family Code § 1.103, “The law of this state applies to persons married elsewhere who are domiciled in this state,” for the proposition that Texas must recognize all marriages which were validly solemnized in another state. (http://bit.ly/7HHCaU)
No comments:
Post a Comment