From Dave Montgomery, "Texas marriages in legal limbo because of constitutional amendment, candidate says", Fort Worth Star-Telegram, 11/17/2009:
Texans: Are you really married?
Barbara Ann Radnofsky, a Houston lawyer and Democratic candidate for attorney general, says that a 22-word clause in a 2005 constitutional amendment designed to ban gay marriages erroneously endangers the legal status of all marriages in the state.
… [T]he 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."
Architects of the amendment included the clause to ban same-sex civil unions and domestic partnerships. But Radnofsky, who was a member of the powerhouse Vinson & Elkins law firm in Houston for 27 years until retiring in 2006, says the wording of Subsection B effectively "eliminates marriage in Texas," including common-law marriages.
Texans who read Language Log were apprised of this danger back in 2005, when I asked "Is marriage identical or similar to itself?" (11/2/2005). Actually, many others (mostly opponents of the amendment) noted this problem back then as well.
The amendment's backers are not concerned:
A conservative leader whose organization helped draft the amendment dismissed Radnofsky’s position, saying it was similar to scare tactics opponents unsuccessfully used against the proposal in 2005.
"It’s a silly argument," said Kelly Shackelford, president of the Liberty Legal Institute in Plano. Any lawsuit based on the wording of Subsection B, he said, would have "about one chance in a trillion" of being successful."
Ms Radnofsky's goal, of course, is to embarrass her opponent:
She calls it a "massive mistake" and blames the current attorney general, Republican Greg Abbott, for allowing the language to become part of the Texas Constitution. Radnofsky called on Abbott to acknowledge the wording as an error and consider an apology. She also said that another constitutional amendment may be necessary to reverse the problem.
As I wrote in 2005, this seems to be an interesting case for theories of legal interpretation, since on one hand, the intent of the drafters and supporters of the amendment is clear; but on the other hand, as Ms. Radnofsky says, "You do not have to have a fancy law degree to read this and understand what it plainly says."
As I understand Antonin Scalia's theory of meaning, for example (about which more here and here), he would conclude that the state of marriage does not now exist in the state of Texas, at least if this amendment passes constitutional muster.
[Hat tip to Neal Goldfarb (update: who argues in the comments below that "it’s actually pretty easy to construct a Scalian analysis that arrives at the same conclusion as an intent-based analysis, but without relying overtly on notions of intent" — though others disagree. And DMajor finds another problem…)]