Texas' gay marriage ban may have banned all marriages

[kpete]

Source: McClatchy


Texas' gay marriage ban may have banned all marriages

By Dave Montgomery | Fort Worth Star-Telegram

AUSTIN — Texans: Are you really married?

Maybe not.

Barbara Ann Radnofsky, a Houston lawyer and Democratic candidate for attorney general, says that a 22-word clause in a 2005 constitutional amendment designed to ban gay marriages erroneously endangers the legal status of all marriages in the state.

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."

Architects of the amendment included the clause to ban same-sex civil unions and domestic partnerships. But Radnofsky, who was a member of the powerhouse Vinson & Elkins law firm in Houston for 27 years until retiring in 2006, says the wording of Subsection B effectively "eliminates marriage in Texas," including common-law marriages.

Read more: http://www.mcclatchydc.com/251/story/79112.html

[laconicsax]

1. Leave it to bigots to shoot themselves in the foot!

:rofl:

[izquierdista]

8. More damaging than a shot to the head

Where the bullet just encounters dense, dark matter and bounces feebly off.

[tazkcmo]

2. Wow.

I think Texas and Florida get their water from the same place. Morans.

[tavalon]

45. Yeah, it's called the fountain of idiocy

I'm so glad I don't live in either place anymore. I donated most of thirty years of my life to those two godforsaken hellholes.

[cannabis_flower]

57. Hey..

You can't blame all Texan's. I voted against it.

[onestepforward]

67. I voted agianst it too. n/t

[cutlassmama]

3. Lovely.

[Mari333]

4. so, now, is everyone in Texas who thought they were legally married actually

committing sinful fornication ? cool.

[Daemonaquila]

22. Alas, full faith and credit messes up that lovely vision for many Texans.

But I'll still hold that image in my brain a while and enjoy it. I just told my husband that we're no longer married. It's much more fun to be shacked up together again.

[dmr]

47. Shacked up

Back in the mid-60s, my cousin and his girlfriend moved in together and had a baby.

The relatives got all bent out of shape; disdainfully calling it shacking up.

This was all said, of course, behind their backs. Everything and everyone had to be prim and proper.

:crazy:

[Hekate]

5. The Law of Unintended Consequences was sure to catch up to them eventually...

Prop 8 in California had to go through several drafts before even being marginally acceptable for the ballot. Some drafts would have banned hetero marriage for infertile couples and post-menopausal women because of language about marriage being for the purpose of procreation.

I have begun to believe that marriage equality is eventually going to need Federal action, just as integration did. Society as a whole has changed as most people are amenable to arguments of fairness, but the regressives are very loud and active and capable of drowning out the rest of us.

Hekate

[customerserviceguy]

10. What kind of Federal action?

I cannot imagine Blue Dogs doing anything for marriage equality, and I have to say, I cannot imagine the Supreme Court doing it, either, unless it revolves around the full faith and credit clause of the Constitution. Then, the solution is simple, get married in Iowa (or wherever legal) then have your home state recognize it.

[Hekate]

23. Application of "full faith and credit" might do it. I know the Scalito court is a huge problem...

... but this see-saw in the states is also. There are (many) times I wonder about the intelligence and/or compassion of the average Murkin.

Hekate

[theHandpuppet]

49. That simple, huh?

Hell will freeze over before states like Virginia recognize same-sex marriages performed in other states. That's exactly why we need federal action.

[customerserviceguy]

51. Of course they won't automatically recognize it

it would require a Supreme Court ruling that an Iowa or Massachusetts marriage has to be accorded validity in Virginia based on FF&C. I really don't see any other way that the Court will rule for equal marriage. When Loving vs. Virginia was decided, it tossed out century-old laws that were spottily enforced. The stains on about thirty state constitutions are of recent vintage, and are strictly enforced, so the Court won't use a "it's just some old obsolete law" theory.

I cannot see anything that Congress will do to enact equal marriage, besides, the only thing the Federal government does with regard to marriage is to defer to state law as to who's married, anyway. The suit currently working it's way through the courts that deals with the part of DOMA that keeps Federal agencies (like the IRS, for instance) from recognizing equal marriages in states where they exist has some chance of prevailing, too. But it's a slimmer one than FF&C.

[chocolate ink]

14. Amendment to Constitution or federal law....

I agree about federal action or amendment for gay rights the same as was done for women getting the 'right' to vote or civil rights legislation.

This state by state voting for or against gay rights/marriage just isn't going to work and it should not be a state by state vote anyway. This is like putting back on ballot in states the right for interracial marriage, leaving it up to voters in each state and I'll bet that some states might actually vote against it.

Or we could bring back the ERA amendment. No matter what I think that eventually there will have to be a federal amendment/law concerning equal rights for gay people.

Prejudice and bigotry will never be stamped out but with legal protection it will be a start.

[Political_Junkie]

74. Agreed

Federal action is necessary. Up here in Maine there was barely a whisper when gay marriage was put on the books, not till outsiders started agitating the churchies. Then things got ugly.

[superconnected]

6. Muhahahahahah

[jgraz]

7. It also sounds like it effectively eliminates re-marrying after divorce.

Stupid Bigots :rofl:

[Seldona]

63. That is one thing I don't get.

Why no outrage about outlawing divorce? They do have a higher than normal divorce rate. You would think the Moral Crusaders would be out in force to stop such an abomination.

Where is the consistency?

[glinda]

77. Stay married or else.....that is what it sounds like. It really reminds me of the Stupid-Pitts law

[Seldona]

80. I didn't say it was rational, or that I agreed with it.

Just pointing out the moral hypocrisy involved with their line of thinking. Imagine a group with a higher divorce rate than the 'normal' population believing they have the only answers, and a lock on marriage? Here we are.

[FiveGoodMen]

9. Ah! Perhaps THIS is the sort of equality we've all been looking for!

[EndersDame]

11. Hey we are a pinnacle of Equality here in Texas! No Marriages for anyone!

[EndersDame]

12. Good I think the benefits married couples get are unfair to single people

I took in my brother for close to a year when he was dealing with illness and job issues. Where was my friggin tax break?!?!

[tomg]

20. I agree except for one thing.

It is not that our getting benefits ( I am married) is unfair to you. It is that you don't get our benefits that is unfair. And in the long run, without complete equality of benefits, it is unfair to all. You are damn straight you should have gotten benefits. Your brother is fortunate. And you still should have gotten benefits.

[snooper2]

53. If you supplied over 50% of his living expenses

You could have used him as a deduction for federal taxes...

:)

[katkat]

59. amend your back tax returns

If snooper2 is correct, you have a few years where you can correct your back tax returns. It may be three years, I'm not sure. Worth a call to the IRS to see.

[drmeow]

68. Amen to that although

it did cost me $2000 in taxes to get married - and theoretically continues to cost me $2000/year in taxes to be married (the difference between as "married" and moving in together and filing separately as "single")

[havocmom]

13. and the shades of Molly Ivins & Ann Richards smiled

[Daemonaquila]

21. Smiled? Hell, no!

Boots up with margaritas, cackling!

[KingBob]

15. Taxes????

What about the folks who thought they were married and checked off the married-filing jointly box? Let's get the IRS in on the action. Sue 'em all and let God sort it out. There isn't enough popcorn to watch this one.

[8 track mind]

16. My marriage might be null and void. No shit

Mrs. Brady and I were married in 2006 in Dallas. By an openly gay minister no less!

[fascisthunter]

17. lol... how stupid (nt)

[Danascot]

18. They're all living in SIN!

:evilgrin:

Yes, Molly & Ann would find this very entertaining.

[DeSwiss]

19. Think of all the bastards they've created in Texas.....

- With or without this law.....

K&R

[Politicub]

24. OMG - ROFL!!!! Love it

But, maybe they knew what they were voting on and wanted all marriages banned. LOL

They voted for it. Give the people what they want. It's a constitutional amendment.

:rofl:

[joeybee12]

25. Problem is intent...

...this isn't what the legislature intended, nor did the voters...courts always take that into consideration.

[Odin2005]

72. BUT, BUT, BUT, Strict Constructionism is sacred! the law must be followed literally!

:sarcasm:

[winyanstaz]

26. bwhahahahaaa....:D serves them right :P hahahahahaa

[marshall]

27. Maybe Texas will lead the way for government to be COMPLETELY out of marriage

Marriage is foundationally a religious institution.

And Texas is inadvertantly promoting a rigid separation of church and state.

[Zhade]

35. WRONG. Marriage is NOT solely a religious institution.

It existed before religion, and it'll exist after it.

I was married. I'm an atheist, i.e. without religion. I was MARRIED. You do not have to be religious to be married. Period.

You are wrong, even if your heart's in the right place.

[marshall]

38. That's possible, but not a proven fact

We can't be entirely sure when dealing with customs before recorded history. Without written evidence (and sometimes even then) it's sort of a chicken/egg argument.

[boppers]

41. Animals who pair(group)-bond are religious?

We don't need history to sort this out, any more than Zebras or Orangutans or Penguins do... animals often group together, and create child-rearing, group survival, units. Nothing religious about it.

[Cleobulus]

44. Marriage as any type of religious sacrament only dates back around 1000 years or so in European...

History, well within "recorded history" so you don't have to look back THAT far for marriage to have been practiced outside of religious context. Hell, the idea of a Marriage Ceremony is largely a product of recent late European Medieval customs. Most cultures around the world and including in Western Civilization as we call it practiced what we today call "common law marriage", shacking up and moving in. Some societies required an additional step, usually involving vows being spoken in front of witnesses but said witnesses were usually family members or friends, not necessarily clergy of any sort.

[marshall]

46. That's true that marriage at one time was very informal, basically verbal

And very private.

The early middle ages was when records started being kept and it became more formalized into what we know today as marriage. And the church was the one that kept the records, largely I suppose because it was also the seat of educaation. There wasn't any separation of church and state in the sense that we know it today (although certainly church leaders and civil ruler squabbled over power).

It always comes down to power, who wants it and who gets it.

[Anarcho-Socialist]

48. Institutional marriage was originally about property rights

i.e. the transfer of ownership of the female from the patriarch of her household to a new husband.

Not to be confused however with other forms of coexisting partnership types, but the above became a dominant form before feminist agitation made institutional marriage somewhat more egalitarian.

Religion in this context either acts as a form of social control (historically justifying female subjugation) or placing the union in a spiritual context.

[TommyO]

61. Civil marriage has absolutely nothing to do with any religious belief

Why are you using a right-wing, anti-gay talking point?

[notesdev]

70. Yeah I was thinking the same

Marriage is none of the government's business, and the laws concerning it are all fucked up anyway.

[Devil_Fish]

28. this is too funny. like when the de-fund Acorn Act accidentaly defunded the MIC.

Good for Texas. Marrage for all, or marrage for none. Seprate is not equal.

[katkat]

60. defund ACORN act/MIC

What happened with that anyway? I lost track.

[sakabatou]

29. That's rich

[SuaveBolla]

30. Jenna Bush!!

Sounds like W's daughter is not legally married!! (May 2008 Crawford, TX wedding)

[drm604]

31. People said this at the time.

This isn't a new discovery.

[MadMaddie]

32. Ha...ha..another brilliant move by the Repug Morans!

:rofl:

[DU GrovelBot]

33. ## PLEASE DONATE TO DEMOCRATIC UNDERGROUND! ##

This week is our fourth quarter 2009 fund drive. Democratic Underground is
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[EndersDame]

55. Don't worry GrovelBot I am Pro Robot marriage!

[the blues]

34. Also, I have to wonder...

...if "marriage in this state shall consist only of the union of one man and one woman"... which one man and which one woman? Sounds like just one marriage to me. B-)

[AsahinaKimi]

36. This is rich...

ROFLMAO!

[tblue37]

37. So in a very roundabout way, gay marriage has finally threatened

traditional marriage, just as the fundies said it would.

Of course, ithe threat came only because their frothing at the mouth over the spectre of gay marriage caused them to try to ban any rights for gay couples, but at last there is a real threat to traditional amrriage caused by something having to do with gay marriage.

[Haole Girl]

39. Just told my husband...

he didn't think it was so funny.

I wonder if it's retroactive... hmm

:rofl:

[TexasObserver]

40. Barbara Ann Radnofsky

Remember her. She's got a lot of talent.

[ThsMchneKilsFascists]

42. Oh Snap!!!!!! n/t

[safeinOhio]

43. I'm in favor of banning ALL marriages

2 very bad ones for me.

[BrklynLiberal]

50. HAH!

[Festivito]

52. Texas should now be the ALONE STAR state.

We talked about this on DU when if first came out a few years ago. We saw it just as it is being seen by this retired lawyer.

Don't mess with Texas. They mess it up enough themselves! :rofl:

[Lone_Star_Dem]

54. Opponents of the amendment argued this angle when they first drafted this legislation

We were either ignored or pooh-poohed.

What we need now is someone, or a few someones, willing to go to court and say they don't need a divorce to remarry because their previous marriage was in Texas. Thus under according to the law it never existed.

[Soylent Brice]

56. fucking morons.

so does this null and void all existing marriages too?
that'd be even funnier.

[Deep13]

58. The plain language of the amendment prohibits official recognition of marriage.

Marriage is identical and similar to marriage, ergo, the state may not create or recognize it.

[lurky]

62. I'm going to let Nelson say it for me:

[beyond cynical]

64. Funny...this has been on the books for 4 years.

Leave it to an attorney to make something out of nothing and then charge $300/hr for it.

[harun]

65. People who have gotten married in that time, then divorced

can now say they don't owe any money to the person because they were never legally married.

[paparush]

66. Queing the Westboro Baptist Church in 3..2..1

[toopers]

69. Why is the government involved in marriages?

I do not understand the reasoning that the government should be involved in this religious practice.

[Zhade]

78. Once again -- MARRIAGE IS NOT SOLELY RELIGIOUS!

Atheists and agnostics -- i.e. those without any religion -- get married all the time.

[Odin2005]

71. HAHAHAHA!!!

:rofl:

[damntexdem]

73. Not new. Pointed out at the time of the vote.

Duped here repeatedly as of late.

But, go Barbara Ann for making it part of the AG debate!

[AldebTX]

75. I Think The State

Should be out of the marriage business any way. So its fine by me if they ban ALL marriages.

[glinda]

76. Including "Common Law" marriages? So you can't live together for years and have it recognized?

[rasputin1952]

79. A few years back, a TX Stae senator, (can't recall the name)...

pushed very hard for tort reform, and got caps on insurance and personal payments that could be laid out under virtually all circumstances when monetary situations occurred. It was considered a huge victory at the time, and this guy was seen as some kind of "hero" by many, especially R's.

Not long after passage of the bill, and its being signed into law, tragically, his son was involved in an accident that made him completely dependent on others for the rest of his life. The cost was going to be astronomical, so, w/o a blink of an eye, this Senator tried to get the TX leg to exonerate him from the provisions of the new law, (he was going to have to pay out of pocket for his son's care). He failed in this attempt, but the lesson was clear...use care in what you wish for, you just might get it.

While I feel extremely sad that this young man must face the rest of his life in the condition he is in, as I would w/anyone in the same condition; I cannot help but see the irony of the whole thing.

The same principle applies in this situation...in their misguided view, those that voted in this law have produced a situation where they try to harm others by denying them a Basic Human Right, have created a situation where even more people get harmed. While TX is not alone in bad legislature, it is one of the states most frequently seen as bordering on just entering the neolithic age. I really feel for the Liberal/Progressive TX's.