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Did Texas Accidentally Ban Marriage?

By Tanya Roth, Esq. on November 25, 2009 | Last updated on March 21, 2019

As Molly Ivins (the great Texas political commentator) might have written about this last go 'round in Texas politics; folks, you just can't make this stuff up. Or maybe you can, but no one would believe you. Believe this: Barbara Ann Radnofsky, a Houston lawyer and Democratic candidate for Attorney General claims that a 2005 amendment to the Texas Constitution bans marriage. Not gay marriage, all marriage.

Take a look:

  • Subsection b of the amendment to the Texas Constitution reads:  "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."

Most would agree the wording appears, as lawyers like to say, "on its face" to prohibit anything "identical to marriage." That sure doesn't leave a lot of wiggle room. And, as Radnofsky writes in her Huffington Post blog entry on the issue, when a statue's language is clear on its face, courts are not permitted to look behind the language for what the true intent of the law may or may not have been.

Ms. Radnofsky tells the Fort Worth Star Telegram this was a "massive mistake," on the part of Republican Attorney General Greg Abbott in allowing the amendment to become law. Radnofsky, in true Texas style, goes on to say one does not need a "fancy law degree to read this and understand what it plainly says." She suggests quick legal action would be needed to fix said goof and prevent what she believes will be a landslide of unneeded arguments and suits over insurance claims, benefits, inheritance and pretty much any other right or duty predicated on being married.

On the other side of town, opponents scoff. Abbott spokesman Jerry Strickland said only that the AG stands behind the amendment and will continue to defend the Texas Constitution in court. Kelly Shackelford, president of the Liberty Legal Institute in Plano, Tx, finds Radnofsky's claim "silly" and that any lawsuit based on the amendment would have a snowball's chance in... well, Texas, of succeeding. According to Shackelford, the amendment was clearly designed to ensure that those in gay marriages, domestic partnerships and civil unions would be deprived of the benefits of marriage. Not to deprive everybody else of marriage.

It seems that Radnofsky is right about one thing, the amendment is breeding unneeded arguments. Texans can probably all agree they sure didn't need this one. 

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