Wednesday, June 01, 2005

Some Texas Twisting

One of the comments posted while I was out concerning the Texas antigay constitutional amendment brought up some very insightful points that I wanted to discuss on the main board.

Did the Texas GOP make a tremendous mistake with the actual wording of the "Marriage" Amendment?

The full language of the amendment is 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.

Ok Part (a) is pretty clear. It defines what marriage is in Texas.

Part (b) is Really interesting. It doesn't limit its' language to same sex couples. If you read it carefully.."may not create of recognize any legal status identical .. to marriage". Does that invalidate the state recognizing ANY BENEFITS OR RIGHTS FOR ALL (GAY AND STRAIGHT) MARRIAGES)?

It seems to me that Part (b) is stating how the state shall assign rights and responsibilities from the marriages defined in Part (a). I take this amendment to mean 'Marriage is for straights only, but the state can't recognize any status for marriage anyway'

Obviously, they could go for the legislative intent ruling to get around this. But wouldn't that get them into a serious Romer issue?

Will this remove common law marriage from the books?

Does this prohibit health and pension benefits to STRAIGHT spouses of state workers?

Does it have implications for community property provisions in Texas law?

Is my reading of the Amendment Crazy?

First off, the reading of the amendment is not in the least bit crazy. On first blush, the vast majority of the state constitutional amendments banning gay marriage look roughly the same, and with the known issues caused by Michigan's and Ohio's amendments, we SHOULD be asking questions about the wording of these monstrosities.

Tom's reading of Part (a) of the amendment is spot-on -- this is the section that defines marriage as being only the union of one man and one woman. Part (b), in my opinion, simply defines that the state itself or its political subdivisions (i.e. cities, counties) may not create or recognize a LEGAL status identical or similar to marriage. This is akin to saying that Dallas County may not set up a domestic partner registry as has Cook County, Illinois; in addition, it precludes a judge from ruling that, for instance, a gay marriage made in Massachusetts must be recognized in Texas. This in and of itself also prohibits civil unions, which is the single biggest thing I found objectionable (other than the fact that it came up at all) about the amendment.

Part (b), in my opinion, does not end common-law marriage, simply because, under Texas law, common-law marriage is not a different TYPE of marriage -- it is a different way of entering INTO marriage. You can think of it in this fashion -- in Texas, you can be married instantly by procuring a license and having the civil ceremony; you can skip those and still be married, but you have to play house for at least two years. The restrictions (age, gender, blood relations, etc.) are the same for common-law as they are for regular; therefore, the two really are the same thing.

In terms of benefits, my judgment is that the Attorney General of Texas is correct and that the amendment as written would not abrogate them, even for state employees. The reason is that the offering of benefits is not dependent on (nor does it create) a legal status -- only the tax and transfer advantages of the benefits are. For instance, my company's definition of "domestic partner" does not reference any state law -- only a specific set of circumstances. It is not a legal status -- in the eyes of the law and the IRS, I remain single, and I am taxed on the additional benefit monies the company gives me for my domestic partner as imputed income. Furthermore, in an interesting twist, since discrimination in benefits on the basis of sexual orientation is not forbidden under Federal law, companies are perfectly free to offer benefits to same-sex unmarried partners that they do not offer to opposite-sex unmarried partners.

As for laws related to property, I do foresee there being some issues with the interpretation of Section 2, which states that certain rights secured by contract do not create a legal status identical or similar to marriage; however, since we already allow contracts that supersede normal laws of community property (can you say "pre-nup"?), it shouldn't be a big deal.

Again, as I said before, defeating this will be a bitch. On the one hand, I suppose we should be happy that consideration was given to protecting domestic partner benefits and allowing gays to enter into contractual forms that approximate marriage benefits; on the other, there is no way in hell that I will ever tolerate or legitimize this level of discrimination being written into state law.

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