Thanks to the efforts of a Texas candidate for Attorney General, a little constitutional tweak made four years ago is now back in the spotlight. The trouble is caused by a statewide referendum that voted in the following change:

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.

I’ve wondered before why the 434th amendment to the Texas constitution hasn’t received more attention. It’s a real life example of a common thought experiment: What if a law says one thing, but everyone — or at least 99% of everyone — understands it to mean something it does not actually say? What, then, is the law?

Well, the answer’s not clear, aside from the amendment pretty much being Buddy Nino’s worst nightmare.

Any judge that has a case come before them based upon the Texas marriage amendment is going to find themselves in between a rock and a hard place. There simply is not a correct answer. In reality, a judge almost certainly won’t find marriage to be unconstitutional in Texas — the political heat is simply too great, and too many serious legal problems would arise based upon suddenly every marriage in the state being dissolved. But if a judge finds marriages are not prohibited in Texas, she will be ignoring the text and replacing it with what “everyone knows it actually means.” That is some textbook judicial activism right there.

And no, the existence of section (a) describing what a marriage is does not save the amendment. It’s as if it read, “Someone can only be a lawyer in this state if they have been admitted by the state bar; however, this state shall not license or recognize a foreign license that would have the effect of making someone identical to a lawyer or would make them something similar to a lawyer.” The first section provides a definition; the second section prohibits the existence of the defined item.

Although the language of the amendment is obviously ridiculous and meaningless, it is also hilariously ineffective at what it purports to do, i.e., ban same sex domestic partnerships. If “marriage is only a union between a male and a female,” then a same sex pairing is certainly not identical or even similar to marriage, because fully half of the required conditions are not present.

Moreover, from the original legislative resolution,

“This state recognizes that through the designation of guardians, the appointment of agents, and the use of private contracts, persons may adequately and properly appoint guardians and arrange rights relating to hospital visitation, property, and the entitlement to proceeds of life insurance policies without the existence of any legal status identical or similar to marriage.”

So we know that, according to the Texas legislature, an arrangement that involves a sharing of resources, power of attorney, a kinshipesque right to visit in the hospital, and a right to receive someone’s life insurance benefits is not similar a marital union. You could argue it would become similar to marriage if these bundle of rights were granted through a single “domestic partnership contract,” but why should it matter whether the bundle of rights is achieved through one contract or two or three?

I am not being facetious here; I honestly cannot imagine what would have to exist before a union between people of the same sex, which is called something other than marriage, would be considered “similar to marriage.” Precisely what are the rights that create a “similar to marriage” status? Is it the right to file joint tax returns? Well that won’t work, because under DOMA no same-sex pairing can anyway. Is it the right to inherit property? No, the state already says that’s not marriage-like. Is it the right to hold a non-state sanctioned marriage ceremony, or to wear wedding bands? Nope, the state can’t ban couples from doing that. Is it the right to hold yourself out as married under the rules of your religion? Nope, they can’t ban that either.

So basically, without intervention via judicial activism, marriage is prohibited in Texas, no matter the gender pairings involved. Likewise, unless a judge engages in judicial activism to get around it, same sex domestic partnerships are adamantly not prohibited. Opposite sex domestic partnerships, however, may or may not be prohibited — that’s a closer question, and would depend upon what rights the partnerships provide and what the judge construes “similar to marriage” to mean.

-Susan