Texas Dogs are Not Barking

So, back to my somewhat lovable but dysfunctional family, I have not yet mentioned my aunt and uncle who now live in Texas. They're conservative. They're Christian. They attend church in an amphitheater the size of a football stadium. In Texas, it's apparently a small church.

To say the least, we don't have a lot in common politically, particularly on gay marriage. I'm a fan. They're not. So, you cannot imagine my delight when a friend passed this gem of an article on to me.

Ooops, Texas banned real marriage while attempting to ban gay marriage. For those too lazy to read the article (no judgments, we all have lives), the Texas Constitution tries to ban gay marriage with this phrase:

"Marriage in this state shall consist only of the union of one man and one woman." Pretty straightforward and seemingly legal until someone important says otherwise (please someone important, say otherwise).

If they would have stopped there, then I would be far less entertained. Luckily, they didn't stop there. Those hard working legislators just had to jam in some extra words to clarify what they meant. In an attempt to ban civil unions or other legal status that might look like marriage, the legislator added (and voters approved) this priceless section:

"This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."

Whoops. Texans need to start paying the people who draft their Constitution more. Actually, I'm a bit short on funds right now, so I'll correct this mistake for $200. Check or Direct Deposit preferred.

If they had just added a little phrase like "except marriage as it is defined by this statute" or "except marriage between one man and one woman" or just deleting the words "identical or" they would be in the clear. Someone, however was lazy and/or stupid.

Don't get too excited though, almost any judge would dismiss this discovery. I highly doubt marriage in TX is endangered. Since I'm studying for my legislation (ie statutory interpretation) final, here's the analysis that saves marriage:

1. Textual Line drawing: challenge the use of the word "identical." While some logical people believe that the word means "the same as," one could coherently argue that, in this context, it means "the same as but not actually." Of course, this forced interpretation brings up the rule of construing statutes to avoid redundancy because "the same as but not actually" is pretty darn close to "similar to." However, one could validly argue that since this interpretation of "identical" is stronger (meaning, it must be the same as marriage) and "similar to" has a lower floor (which could, conceivably include some but not all marital rights), the two provisions are not redundant, at least not to the point of rendering the definition of identical invalid.

2. Intent argument: It's pretty obvious that the people of Texas didn't intend to invalidate all marriages within the state. Courts can invalidate the clear language of a statute if the judges believe that the situation is not what Congress intended by the language. See Church of the Holy Trinity v. United States, 143 U.S. 457 (1892) (holding that, despite the plan language of the statute banning the importation of laborers, Congress did not intend to prohibit churches from importing ministers).

I'm sure there's a whole long legislative history full of blow-hards yammering on about defending the institution of marriage, not chucking it out the window. Furthermore, such a reading would invalidate every law in Texas relating to marriage, and I doubt the legislature would have done such a thing without saying they were doing it. For your reference (and because I should be studying), this "they would have said it" argument is called the Dog that Didn't Bark. I'm a cat person, but I still find that an awesome way to name a cannon of interpretation. Woof Woof!

3. Call it a Scrivener's error and be done with it. People are stupid. They make mistakes. This is a mistake and the courts shouldn't enforce it. Easy as that.

Sigh, so there is still marriage in Texas, unless you get one hell of a crazy judge. Hey, it could happen. Judges are elected down there. Of course, knowing how a court case would come out won't stop me from calling my aunt and uncle and informing them that, thanks to Texas's anti-gay marriage provision, they aren't actually married. For once I'm pretending to be a pure textualist. Yay for shredding (straight) marriage by channeling Scalia. How often does that happen?