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Thursday, November 03, 2005

Same-sex Marriage, Proposition 2, and Honest Advertising

Voters in Texas will have a chance to amend the Texas Constitution to ban same-sex marriage.  But will the amendment also inadvertently ban "traditional" marriage?

The proposed amendment reads, in pertinent part:

H.J.R. No. 6

A JOINT RESOLUTION proposing a constitutional amendment providing that marriage in this state consists only of the union of one man and one woman.


SECTION 1. Article I, Texas Constitution, is amended by adding Section 32 to read as follows:

Sec. 32. (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.

Some opponents of the proposed amendment have seized on the bolded language and argued to voters that this language will prohibit the state from recognizing marriage between opposite-sex couples.

Much as I detest this amendment, it seems to me that the opponents' claim is plainly wrong.  Section 32(a) clearly provides the definition of marriage as being between one man and one woman.  Section 32(b) prohibits the state and its subdivisions from creating or recognizing some other relationship and granting it the status "identical or similar to" what has already been defined as marriage.  I don't believe that anyone could fairly read the proposed amendment in any other fashion.

Texans should vote against the proposed amendment not because it would inadvertently nullify "traditional" marriage, but rather for the following reasons:

1.  Same-sex couples should be given full marriage rights, for the reasons expressed by Dale Carpenter in an ongoing series (beginning here, follow the links for more) over at volokh.com.

2.  The Amendment is countermajoritarian, as I argued with respect to the proposed Federal Marriage Amendment, because it would prohibit the Texas legislature from adopting same-sex marriage or civil unions at some conceivable future time when a simple majority of the population and its elected representatives supports such a change.

3.  It accomplishes nothing that could not also be accomplished without offending countermajoritarian principles.  For instance, the Amendment could simply prohibit courts from interpreting the Texas Constitution to require recognition of same-sex marriage or similar relationships, thus leaving it to the legislature and the people.  To go even further, the Amendment could require any future proposal to recognize marriage-like relationships to go directly to the people through a referendum process.

4.  Although opponents of the Amendment are wrong that its adoption would create confusion by leading people to question the legality of "traditional" marriage, the Amendment would be confusing in a different sense: what does "legal status . . . similar to marriage" mean?  We all intuitively know that the language is intended to prevent courts and the legislature from recognizing civil unions that are almost identical to same-sex marriage (a la Vermont and Connecticut).  But what about other marriage-like/marriage-lite relationships and rights?  Presumably, this question will end up in Court, precisely the place where conservatives claim they don't want these questions decided.

Argument (1) is a policy-based argument: I strongly disagree with the substance of the Amendment.  I believe it represents bad policy and wrongly discriminates.  Arguments (2) and (3), by contrast, are proceduralist/institutional: Constitutions should primarily concern themselves with procedural rights and rules, and also enhance majoritarian democracy.  Argument (4) is textual: This statute has the potential to create a great deal of uncertainty and mischief.

What do our readers think?

Posted by Hillel Levin on November 3, 2005 at 03:29 PM in Hillel Levin | Permalink


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I understood the logic of your reasoning. My point was that, other than the initial issue regarding interpretation, your arguments are fundamentally policy-related. I was sincere when I suggested the "let's see what happens" policy. In the long run, it might be instructive for the states to experiment with this issue.

Posted by: DRJ | Nov 4, 2005 4:00:02 PM


By all means, keep posting.

You might look at my post this way:

1. Some are saying that you should oppose Prop. 2 for reason X.

2. In my opinion, reason X is a poor argument for opposing Prop. 2, and is in my view dishonest.

3. Here are the real reasons you should oppose Prop. 2.

In what way is that not a reasonable construction?

Posted by: Hillel Levin | Nov 4, 2005 2:54:53 PM

Sorry I have not made myself clear. I promise that I won't belabor this point further (beyond this comment), but I would like to try to get my point across so that I can leave on an amicable basis.

Your initial question was: "But will the amendment also inadvertently ban "traditional" marriage?" This strikes me as a straightforward question of whether the proposed Texas constitutional amendment is properly worded - as opposed to an amendment that is technically deficient or otherwise worded in such a way that it does not accomplish its purpose. I think we all agree the proponents' intended purpose of the amendment is to establish marriage as a one woman-one man relationship and to prohibit gay marriage, but it's not clear that the amendment will actually accomplish that goal. You answer that question at the outset and, while courts can and do surprise me with their decisions, I agree with your analysis and I think most courts would agree as well.

You then turn to a discussion of why this amendment is not good policy. Fair enough. I might agree with you, but a discussion of whether it's a good policy is far different from the issue of whether it is worded in such a way that it will be properly interpreted. In other words, I'm trying to differentiate between the interpretation of and the policy reasons for the proposed Texas constitutional amendment. It seems like you are mixing apples and oranges.

I would analogize this to a contractual dispute, where the parties might argue the interpretation of a contract. A court might decide to follow the four-corners rule in interpreting the contract or it might look into the circumstances of the transaction, but it would not then consider whether it was a good policy idea for the parties to have entered into the contract.

Thank you for the opportunity to post at your blog.

Posted by: DRJ | Nov 4, 2005 2:50:05 PM

"Although I agree . . . that it isn't the ultimate interpretation anyone would adopt, isn't there some ambiguity there?"

It depends on what the meaning of "is" is, of course. I mean, this is just wordplay: "No one would ever read it this way, but it is ambiguous because someone COULD read it this way." What does that even mean?

Now there's NO doubt that it could be better worded, of course. Like any legislative text. (Perhaps it could have said something like ". . . may not confer the legal status of marriage onto any other relationship" or something of the sort.

But if we know in advance (as I think we do, and as I think you just agreed) that everyone is going to read it to allow "traditional" marriage, and to outlaw same-sex marriage, what does it matter? "It could have been written better" isn't a legitimate reason to oppose it if its failings won't amount to anything.

Posted by: Hillel Levin | Nov 4, 2005 1:03:05 PM

Hillel: although I agree (and I think Dan does too) that it isn't the ultimate interpretation anyone would adopt, isn't there some ambiguity there? Consider the following clause at the end of the last sentence of the amendment: "between any group of persons other than one male and one female." Wouldn't that make it clearer, indeed, absolutely clear? And if so, doesn't that imply that it's less clear without that clause?

Alternatively, they could have just put the word "other" before the phrase "legal status" if they wanted to clearly say what the courts no doubt will find they said.

What else does "identical to" mean, anyway? If I pass a constitutional amendment saying "the State of Delaware shall not recognize any entity identical to a corporation," doesn't that outlaw corporations in Delaware?

Posted by: Paul Gowder | Nov 4, 2005 12:53:13 PM

DJR: I am totally confused. My argument IS that the people should judge this constitutional amendment on its merits. And I think that it has no merit, for policy reasons, for principled reasons, and for concerns with what the actual statute means. What more do you want? Did I once suggest that people should be prohibited from voting?

Dan: If we judge every proposed statute or amendment based on whether courts could conceivably, but really unlikely, do bizarre and whacky things with it, then we would have no legislation. Anywhere. That's not a reasonable standard to apply, and I don't believe you'd apply it anywhere, except for to a provision that you strongly disagree with.

Posted by: Hillel Levin | Nov 4, 2005 12:16:18 PM

No, you aren't discussing the "options", you are arguing against a proposed Constitutional amendment with which you disagree. You are framing it as a legal/linguistic discussion, but it's actually a discussion on the merits. To which I respond: Why not let the people of Texas decide?

Posted by: DRJ | Nov 4, 2005 11:48:10 AM

Hillel, it's unlikely, I grant you that, but not absurd. Courts have done stranger things in the name of interpretation.

Posted by: Dan | Nov 4, 2005 10:10:53 AM

DRJ: This whole conversation assumes that the people of Texas will be deciding for themselves. We are discussing what the options are.

Dan and Paul: You have got to be kidding me. Let's assume for a moment (and I don't, but I will for now) that the amendment is, in fact, ambiguous. Your reading renders the amendment to mean as follows: "There is no such thing as marriage under Texas law." In light of the first section of the amendment, "Marriage in this state shall consist only of the union of one man and one woman," any such reading is absurd.

Posted by: Hillel Levin | Nov 4, 2005 9:04:09 AM

What about letting the people of Texas decide for themselves? It seems to me that it would be interesting to see how the various states address the issue of marriage and compare notes, so to speak, on the results. Some solutions would probably be disastrous, some marginal or unsurprising, and a few states might offer solutions that would work surprisingly well.

Posted by: DRJ | Nov 3, 2005 11:02:22 PM

What Dan said. Is anyone admitted to the Texas bar around here? When they pass that, I dare you to find someone with standing (an aggrieved victim of bigamy?) and sue for a declaratory judgment invalidating the state's marriage statutes. I'll ghost the brief.

Posted by: Paul Gowder | Nov 3, 2005 10:37:46 PM

Hillel, you're right that a court interpreting this language of the statute would likely interpret it the way you suggest (ie., to not prohibit opposite-sex marriage), but I don't think the opposing argument is "plainly" wrong. If a state cannot recognize a legal status identical to marriage then it cannot recognize marriage because something identical to marriage is marriage. (This reading puts a lot of weight on the meaning of identical, I grant, but it's not an unusual way to understand "identical.") In any event, one needs recourse to non-textual hermeneutic strategies to circumvent the problem. Those aren't per se illegitimate, at all; but the textualist has a decent argument; reading b) in light of a), however, would suggest something is awry...is that textualist, or intertextualist?
I prescind from the other questions. Nah-I can't. Of course the amendment is idiocy.

Posted by: Dan Markel | Nov 3, 2005 8:42:35 PM

Most Texans are going to vote "yes" on Proposition 2, is my guess. I agree with Hillel Levin. The Democrats and opponents of Prop 2 are making a mistake by disingenuously nitpicking on faulty technical matters such as the "bold type" in sec 32 (b) of the proposed amendment, instead of "boldly" addressing this as a civil rights issue. Thus, even if they lose, they would at least have fought a good fight and have laid the groundwork to take this on at a future date.

The grass roots on the conservative side of this proposition are very well organized. The churches in Texas are almost all for the amendment. There are seven homes in the cul de sac where we live - four of them have yard signs saying " Marriage: One Man, One Woman - Vote Yes on Prop 2". I receive at least two phone calls every day from church or "family" institutes asking me to vote "yes".

Surprisingly enough, letters to the editor in Houston Chronicle ran 3 - 1 against the proposition. I don't know if that reflects the paper's own selective bias or if there really are enough people in Houston concerned about the discriminatory nature of this amendment.

Posted by: Ruchira Paul | Nov 3, 2005 8:19:51 PM

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