Are All Texas Marriages -- Gay AND Straight -- Invalid?

11.19.2009

By Noah Michelson

Photo: Getty Images

According to Barbara Ann Radnofsky they are. The Houston lawyer and Democratic candidate for attorney general is creating controversy in cattle country by pointing to a 22-word clause in the 2005 constitutional amendment which banned gay marriage in the state and claiming that it actually invalidates heterosexual marriages as well.

McClatchyDC.com reports:

"The amendment, approved by the Legislature and overwhelmingly
ratified by voters, declares that 'marriage in this state shall consist
only of the union of one man and one woman.' But the troublemaking
phrase, as Radnofsky sees it, is Subsection B, which declares:

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

Oops.

"You do not have to have a fancy law degree to read
this and understand what it plainly says," said Radnofsky, who blames the state's current attorney general, Republican Greg Abbott, for the error. Radnofsky is demanding Abbott acknowledge the issue and apologize, and is calling for another constitutional amendment to fix the problem.

Abbott stands by the amendment and Kelly Shackelford, president of the Liberty Legal Institute in Plano says, "it’s a silly argument." He adds that any lawsuit attacking the amendment based on the 22-word clause would have "about one chance in a trillion" of winning in court.

Still, Radnofsky isn't backing down. "This breeds unneeded arguments, lawsuits and expense which could
have been avoided by good lawyering," she said. "Yes, I believe
the clear language of B bans all marriages, and this is indeed a huge
mistake. Whoever vetted the language in B must have been asleep at the wheel."

Gay marriage -- and divorce -- were hot topics last month in Texas when Dallas District Judge Tena Callahan ruled that the state's same-sex-marriage
ban is unconstitutional because it makes gay divorce impossible. Predictably, Abbott is appealing the ruling, which came as the result of a divorce petition involving two men who were married in Massachusetts in 2006.

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