There has been much hullabaloo about the Texas marriage amendment. Some wail that the cause is lost in Texas. Others claim that Texas has succeeded in outlawing all marriage. While the second may or may not be the case, the first is certainly not. See you on the flip . . .
He read it for the first time today. Here's the full text:
H.J.R. No. 6
A JOINT RESOLUTION proposing a constitutional amendment providing that marriage in this state consists only of the union of one man and one woman.
BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
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.
SECTION 2. 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.
SECTION 3. This proposed constitutional amendment shall be submitted to the voters at an election to be held November 8, 2005. The ballot shall be printed to permit voting for or against the proposition: "The constitutional amendment providing that marriage in this state consists only of the union of one man and one woman and prohibiting this state or a political subdivision of this state from creating or recognizing any legal status identical or similar to marriage."
His reaction:
It does not ban heterosexual marriage.
It is, however impossible to enforce because the SECTION 2 purports to make legal exactly what SECTION 1 makes illegal. Since it is internally inconsistent, it is unconstitutional under the Federal Constitution.
He also said that the correct method to attack this, and any other ban on same-sex marriage is under the "Full faith and credit" clause of the US Constitution.
Article. IV.
Section. 1.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
The Framers included this clause in the Constitution specifically to address a problem with the Articles of Confederation where what was legal in one State was illegal in another. Even a strict originalist would understand this.
In the light of Article IV of the US Constitution, the Texas Amendment places an undue burden upon those legally married in Massachusetts or Hawaii who move to Texas.
The correct line of attack is to set up the test case: A same-sex couple, legally married in Massachusetts or Hawaii moves to Texas and challenges the Constitution.
This approach would tie the "conservative justices" in knots. Scalia, Thomas and Roberts would be caught between their bigotry and their "Dead Constitution" philosophy. Bader-Ginsburg, Souter, and the rest of the "liberal justices" will call this on it's face: unequal protection. Either way, we win.