Schradenfreude in Texas

By Dave Anderson:

Schradenfreude may strike Texas, as a plain reading of their anti-gay marriage laws and amendments that passed in 2005 implies the possibility of all marriages not being legal in Texas. [h/t James Joyner]

From McClatchey:

The amendment, approved by the Legislature and overwhelmingly ratified by voters, declares that “marriage in this state shall consist only of the union of one man and one woman.” But the troublemaking phrase, as Radnofsky sees it, is Subsection B, which declares: “This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

Not being a lawyer, but one who is able to split hairs fairly well, Subsection A defines marriage, and then subsection B says that the state will not recognize anything that is identical to marriage. If x=x, then x is identical to x, and thus it is not recognized.

Again, not being a lawyer, law should be parsimonious with its wording which means that each word used should have a unique meaning; James objects to the potential for schradenfreude on the basis of create as hetero-marriage was already created before the law was passed, however the law did not have an AND joiner, it had an OR joiner for recognize. The schradenfreude moment is for the "OR Recognize" portion of the subsection.

I sure as hell hope some liberal lawyer with means, a sense of snark and a willingness to go strict textualist takes this law up and sues under the OR Recognize hook.

Comments

[upyernoz]

i am a lawyer (though not one that is licensed to practice in texas). i actually think that no TX court will interpret the constitutional provision to outlaw the recognition of straight marriage.

Article I, Section 32(a) says "Marriage in this state shall consist only of the union of one man and one woman." the section quoted in the mcclatchy article comes right after that at section 32(b) where it says "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage." 32(a) gives enough for a court to read 32(b) in context and rule that it doesn't mean what it seems to literally say when you read it in isolation.

[Zifnab]

You could conceivably argue that the law outlaws all marriages performed within the state of Texas, but allows the state to recognize one-man/one-woman marriages outside of the state.

But, again, I don't see any of the very conservative Texas SC justices - much less a majority - ruling this way.

I think we'll see DOMA overturned on the Establishment Clause, and the Texas amendment invalidated on similar grounds before we see this amendment disrupt anybody in the state.

[Zifnab]

Sorry. Not the Establishment Clause. Maybe the Commerce Clause. Or whatever it is that requires one state to recognize contracts, partnerships, and the like performed in another state.

[upyernoz]

Or whatever it is that requires one state to recognize contracts, partnerships, and the like performed in another state.

i think you're looking for the full faith and credit clause. (Art. IV, Section 1)

the problem is that states are allowed to not extend full faith and credit if the ruling of the other state conflicts with the recognizing state's public policy. the public policy exception is the basis for all the state DOMAs that first went into vogue in the mid-1990s when hawaii almost became the first state to recognize same sex marriage. that's why all the state DOMAs start with some kind of statement that same sex marriage is against the public policy of that state.

[John Ballard]

...law should be parsimonious with its wording...

Off-topic, but this line jumped off the screen at me.
I recalled reading somewhere that Canadian Medicare was only sixteen pages long. I couldn't find the source but I did find this which is even better:

Most Canadians would probably faint if someone showed them the Canada Health Act. It is far from being a massive legalese monster that defines everything in the huge health sector down to the letter.

The act is just 13 pages. It could be easily folded into quarters and slipped into your back pocket. Its framers made it vague intentionally so as to include as many health services as possible. It was meant to set the floor of the health-care sector, not the ceiling.

One of my political science professors pointed out years ago that many state constitutions have literally hundreds of amendments. The reason? No one trusts their successors to follow legislation unless their hands are tied.

Compare the House version of health care reform with that of the Senate. Literally thousands of pages altogether. I wonder how big the final result might be, if and when there is one.

Sad. Very sad.