Examining an AG candidate's claim about the Texas constitutional amendment defining marriage

Barbara Radnofsky of Houston, Democratic candidate for Texas attorney general, says overbroad language in a 2005 constitutional amendment meant to prevent the recognition of same-sex marriages eliminates anything “identical” or “similar” to marriage in this state. “What’s identical to marriage if not marriage? What’s similar to marriage if not common-law marriage?” asks Radnofsky, who points a finger of blame at Attorney General Greg Abbott, a Republican, for what she calls “a flat-out mistake” in the wording of what is now Article 1, §32(b) of the Texas Constitution. The provision reads: “This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage." Radnofsky says, “It on its face eliminates marriage. . . . What it is going to require is judicial activism to rewrite this constitutional amendment.” Family law solo Darlene Ewing, chairwoman of the Dallas County Democratic Party, agrees with Radnofsky. “I think it’s badly drafted,” Ewing says of the constitutional provision. “I think there are creative lawyers who are going to use it to their advantage.” Ewing predicts that challenges under the provision are more likely to target common-law marriages than formal marriages. But James Paulsen, a South Texas College of Law professor who teaches family law, says Radnofsky is “dead wrong,” because she overlooks the fact that words have more than one meaning. Paulsen says the word “identical” can mean something is the same as something else, or it can mean something is a copy of something else. “Once you look at the word in its context in the whole sentence, it is absurd to say it prohibits marriage,” Paulsen says. “You’re stopping the creation of a duplicate.” Paulsen also says that common-law marriage is merely a different way of entering into marriage. “It is not a different kind of marriage,” he says. Regardless of whether the marriage is formal, or informal, the parties have to get a divorce in the same way, he adds. Jerry Strickland, spokesman for the Texas Office of the Attorney General, notes in an e-mail, “A bipartisan coalition of House and Senate members, not the attorney general, was responsible for drafting the marriage amendment, but Attorney General Abbott is completely comfortable with the amendment’s language. It is clear that the Legislature and more than 1.7 million Texas voters knew what they were doing when they adopted the constitutional amendment to protect traditional marriage.” But Paulsen says there are problems with the wording of Article 1, §32(b), such as the use of the word “similar.” To figure out how similar something has to be to marriage to run afoul of the constitutional provision will require judicial activism, Paulsen says.
-- Mary Alice Robbins