Do you believe that the gay marriage ban in Texas banned all marriage (read all)?

Question

First, please answer with an open mind. Don't answer based on your political feelings.

Amendment 32: Marriage
(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.

Does the above amendment that was made to the Texas Constitution ban all marriage? This is the reasoning some have recently concluded that it does:

Section (b) states that Texas cannot recognize any legal status identical to marriage, and section (a) states that marriage is the union of a man and a woman. If Texas cannot recognize any legal status identical to marriage (the union of a man and a woman), than it cannot recognize marriage itself. Marriage is identical to marriage.

This can also be understood through basic logic. Using a Euclidean proof (but written in paragraph form):

It is given that Texas cannot recognize any legal status identical to marriage, and marriage is the union of a man and a woman. Marriage is identical to marriage by the reflexive property. As Texas cannot recognize anything identical to marriage, it cannot recognize marriage.

So, what do you think? This also raises the debate of letter of the law vs. spirit of the law.

Joe Finkle · Accepted Answer

No, it does not ban all marriage. It only bans heterosexual monogamous marriage and other unions deemed similar to it. Those who think that gay marriage is fundamentally different, including the state legislature of Texas, would cause an interpretation that suggests that ONLY gay marriage is legal in Texas. (except they can't call it marriage, technically this doesn't allow same sex marriage, but allows Texas to pass same-sex civil union legislation, while they cannot opposite-sex civil union legislation)

You only use the spirit of the law as an interpretive aide, when the letter of the law is clear on it's face, it takes precedent, especially in recent law.

HOWEVER, even though they would be technically incorrect, any Court asked to review this would likely make the following finding:
Section a implicitly legalizes the institution of marriage. (it doesn't, but that would be the interpretation) Section b cannot be interpreted to be in conflict with the immediate proceeding section in the same law, so the only logical interpretation is that it outlaws all OTHER similar institutions. That interpretation is wrong, but likely. Another possible ruling is that since the interpretation I gave couldn't possibly be what they meant, it would be interpreted according to the clear intent of the law, in spite of being facially the opposite. This rule of construction is typically only used when a law makes no sense on it's face.

Note that lawmakers do occasionally pass laws by mistake. Another state recently accidentally legalized marriage only by young children. They corrected it with emergency legislation to their great embarrassment.

Anonymous · Answer

It sure does sound like it is saying that the state of Texas is no longer recognizing marriage. Hum, perhaps I should have waited to get divorced? This would have solved all sorts of things LOL

? · Answer

I certainly hope that it does, I believe in equality and if two consenting adults can't marry then I think it should be across the board ;)

Trending News

Do you believe that the gay marriage ban in Texas banned all marriage (read all)?

3 Answers