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Indeed it's even funnier. To apply (b) you need to use the definition in (a). Thus the state cannot create or recognize a legal status involving the union of one man and one woman. But it could still recognize other kinds of unions, eg same sex unions and unions involving more than 2 persons.

By Anonymous, at 5/24/2005 11:02:00 AM

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Obviously, neither of you is familiar with the Doctrine of Clear Mistake. Reading section (a) in conjunction with (b) does lead to the logical conclusion that both of you have reached, but it is also (as you both acknowledge) plainly in contrast to the intent of the legislators and the will of the Texan people, and obviously due to faulty drafting. A reasonable court would strike down or limit the word "identical" not to preclude marriage (clearly defined in section (a)) and construe (b) to prevent the conferral of the legal status of marriage to any union not consisting of one man and one woman (meaning what is in section(a)).

By 37383938393839383938383, at 5/24/2005 12:34:00 PM

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What about children? If a family of man, wife and children come into Texas, can the children claim rights that turn upon the existence of a marriage? (I don't know of any such rights offhand, but it doesn't seem implausible that they exist.) The answer would seem to be no -- in Texas, a marriage shall consist only of the union of one man and one woman.

By Anonymous, at 5/24/2005 03:07:00 PM

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That's a good point, CriticalObserver. I guess maybe I should have written my post with ironic undertones.

By Jonathan, at 5/25/2005 12:45:00 AM

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Given that some view marriage as nothing more than a legal contract to share wealth and property, banning anything that resembles marriage may also void the majority of business contracts in the state as well.

By baggiegenes, at 5/25/2005 11:36:00 AM

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CriticalObserver's point is well taken: The Texas legislature will be rescued by Activist Judges doing what is Right instead of what is Written.

At which point, I imagine, Tom DeLay will threaten them with impeachment!

By Anonymous, at 5/25/2005 01:31:00 PM

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By Pablo, at 5/25/2005 03:40:00 PM

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Just to be clear, those who oppose activist judges on originalist grounds would have no problem interpreting this as it was originally intended. There's nothing inconsistent about opposing people who take things as they weren't originally intended while approving of those who take something as it was originally intended, even if what it strictly speaking says isn't how you're taking it.

By Jeremy Pierce, at 5/26/2005 06:23:00 PM

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No, no, no, you've got it all wrong. You're supposed to read "(b)This state or a political subdivision of this state..." as an EXCLUSIVE 'or.' One of them may, but the other may not!

Hope you don't mind if I spread this around a bit.

By Imlac, at 5/27/2005 08:42:00 AM

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Well I think the context is misconstrued because hjr 6 was an addition to the given Texas Statutes already enacted, therefore further defining the context of a marriage in Texas. Am I wrong?

By Crystal, at 5/28/2005 08:20:00 PM

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Well, HJR 6 adds a new section to Article I of the Texas Constitution, so I guess you could say that technically, it's an "addition to the given Texas Statutes already enacted". But none of the rest of Article I of the Texas Constitution has anything to do with marriage. Ironically, Article I is the "Bill of Rights" in Texas. So there's no previous Constitutional definition of marriage for HJR 6 to add to.

You can see the entire Article here. The new section would just be tacked on at the end, as §32.

Now there is some language in the Texas Family Code about what sorts of people are eligible for marriage. I don't have my books handy, but I know it's one of the first sections in Chapter Two of the Texas Family Code, in which the Legislature specifies that marriage can only be achieved between a one man and one woman. There are also court decisions backing up this requirement. (In one interesting case, which again, I don't have handy to cite, the court ruled that a transgendered person keeps his original gender for purposes of marriage -- so if I become a woman, I still can't marry a man in Texas.)

The difference, of course, is one of status. A Constitutional amendment needs another Constitutional amendment, complete with voter approval, in order to be changed. If the Legislature becomes much more progressive in the next twenty years, it could just amend the relevant part of the Family Code to permit homosexual couples to marry. But if the amendment passes, then even the most progressive Legislature on earth can't overturn it without a majority of Texans behind them. This would be very, very difficult.

But the original charge (made here, for those of you who are confused by this discussion) was that I had taken the amendment text out of context, making the Legislature look stupider than it actually is. I maintain that I have not taken it out of context -- I've given all the relevant information about the new proposed section in the Texas Constitution. In particular, it would *not* be a mere part of an already-existing body of Constitutional law on marriage.

If you think that I am leaving important information out, then please, tell me what that information is. I don't claim to have intimate knowledge of the ins and outs of Texas statutes. I'm not a lawyer. But I work with it a lot, and I've read most of it more than once. I really don't see that I'm leaving anything important out.

By Jonathan, at 5/28/2005 08:33:00 PM

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Here's an amendment to the Kansas Constitution approved by 70% of voters April 5:

“Marriage. (a.)The marriage contract is to be considered in law as a civil contract. Marriage shall be constituted by one man and one woman only. All other marriages are declared to be contrary to the public policy of this state and are void. (b.) No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage.”

Cute stuff, huh? First of all, it could be argued that "only" could also mean "ever," banning all re-marriage! But that is unlikely (we hope). More to the point, what are the "rights and incidents" of marriage? Child custody? Adoption? Co-habitation? Joint ownership of property?

This is what happens when ideology replaces law.

kdn in Kansas

By Kevin Nyberg, at 5/29/2005 06:12:00 PM

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Check out the latest from Texas. Big Oops you guys wrote about earlier.

savetexasmarriage.com

By Anonymous, at 10/29/2005 12:49:00 AM

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"In one interesting case, which again, I don't have handy to cite, the court ruled that a transgendered person keeps his original gender for purposes of marriage "

I believe that was Christie Lee Littleton you are referring to.

However, in another case in Florida, it was ruled differently.

By Anonymous, at 11/08/2005 11:03:00 AM

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Texas Bans Marriage!

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