Does marriage exist in Texas?

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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?

Maybe not.

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…)]



49 Comments

  1. Busyhands said,

    November 19, 2009 @ 2:03 pm

    But is it retroactive? Do we have to go to Oklahoma and get married again, 30 years later?

    And what about "create or recognize"? If there is already a concept of "marriage", can a justice of the peace apply it to "undesirable" couples without creating something new?

    Stampeding dumb animals has been a Texas specialty since the 1870s. I see it's still being practiced.

  2. Peter Harvey said,

    November 19, 2009 @ 2:34 pm

    That reminds me of the old question in Africa in the 1920s: Are you married or do you live in Kenya?

  3. Mark P said,

    November 19, 2009 @ 2:41 pm

    It seems to mean that the state cannot recognize marriages from outside the state either, despite the full faith and credit clause of the Constitution. Maybe the supporters of this bill expect activist judges to determine what the law should mean rather than relying on what it actually says.

  4. MattF said,

    November 19, 2009 @ 2:58 pm

    Apparently, the proponents are all in marriages that are neither similar nor identical to marriage. Makes perfect sense.

  5. Bob Lieblich said,

    November 19, 2009 @ 3:13 pm

    This isn't as rare as one might suspect. I remember a contract from my youth in which the word "conformation" appeared. What was actually meant was "confirmation." The sentence read something like: "The contractor may not proceed until receipt of conformation from the owner." The clause containing the sentence became the subject of litigation, but not because of the typo, and everyone simply ignored the typo. Of course, in that case context made quite clear what was meant, and the sentence was nonsense — in that context — if interpreted literally.

    I also recall beating a traffic ticket by looking up the state law I was accused of violating by passing, on the right on a narrow highway, someone who slowed down, signaled a left turn, and then continued straight ahead. The law said: "It shall be legal to pass on the right except when … on a multiple-lane highway, passing on the right a vehicle turning left, [etc.]." Plainly the law didn't say what was intended, and because it was penal in nature it had to be read literally, so I got off. The law was amended soon after.

    Okay, this time we have a constitutional amendment instead of a contract or statute, but the principle isn't all that much different. If the disputed provision isn't penal in nature, and if context makes clear what is intended, a court is likely to go with what was meant rather than what was said. The goof has to be an obvious one, but I think the Texas example qualifies.

    None of this means that whoever wrote the thing shouldn't be canned.

    [(myl) IANAL, but everything I've heard and read suggests that you're right about the practical outcome. But it seems to me that it's hard to square this practical outcome with textualist theories of legal meaning, at least as explained by Justice Scalia.]

  6. Chris said,

    November 19, 2009 @ 3:24 pm

    Whose intent matters? The wording of the amendment was repeated in the ballot initiative that the voters approved. If any intents should be relied upon, it would be those of the voters. The intent is pretty obvious for subsection (A), but I don't think it's reasonable to assume everyone's intents were the same for (B).

    [(myl) A key part of Justice Scalia's argument, as I understand it, is that there is no coherent answer to your question. He writes that

    What is needed for a symbol to convey meaning is not an intelligent author, but a conventional understanding on the part of the readers or hearers that certain signs or certain sounds represent certain concepts. In the case of legal texts, we do not always know the authors, and when we do the authors are often numerous and may intend to attach various meanings to their composite handiwork. But we know when and where the words were promulgated, and thus we can ordinarily tell without the slightest difficulty what they meant to those who read or heard them.

    And in this case, as Ms. Radnofsky says, the meaning of clause (b) is pretty plain, even if it's plainly not what its drafters intended. ]

  7. Bill W. said,

    November 19, 2009 @ 3:40 pm

    The IRS is going to have its hands full assessing deficiencies for all those taxpayers who filed joint returns after going through invalid marriage proceedings in Texas.

  8. Bill W. said,

    November 19, 2009 @ 3:51 pm

    Doesn't subsection A, when read together with subsection B, seem to actually allow recognition of same-sex unions? Subsection A apparently provides that "marriage in this state shall consist only of the union of one man and one woman." Then subsection B goes on to provide that "[t]his state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage." But if marriage consists only of the union of one man and one woman, a same-sex union, or a union of a human and an animal, for example, isn't marriage and isn't similar to marriage and the state or a political subdivision of it should be able to recognize it.

  9. Robert E. Harris said,

    November 19, 2009 @ 4:03 pm

    Bob Lieblich's "conformation" reminded me of the time I heard my father break out in great laughter. He was reading over a patent application he was preparing. The patent was to cover a machine later sold as the Sunkist Juice-It. The stenographer had produced a line that contained the words "the osculating screen." (The screen was to remove most of the pulp from the orange juice being produced.)

  10. Acilius said,

    November 19, 2009 @ 4:12 pm

    Clever, Bill W! I can see why you have so many friends.

  11. Robert said,

    November 19, 2009 @ 4:14 pm

    Is a thing necessarily identical to itself, in general usage? Logically, it is, but most people aren't logicians.

    Things are usually said to be identical if they're the same in all relevant respects, but not actually the same item. Further, under the narrow interpretation, the only thing identical to marriage is marriage itself, making 'identical to' redundant, but in general sentences to contain no redundancies – hence various conventional implications, etc.

    Also, the amendment itself recognises marriage as a special status – a standard against which Texan law must compare any legal status – so under the proposed interpretation, the amendment makes itself illegal,
    which is paradoxical. Judges, I sust, would rather avoid paradox, whatever their other views.

    Putting this together, the plain reading of the text, solely on the polite assumption that the writers of the amendment did not intend redundancy, is that it forbids Texas from creating a legal status other than marriage which is indistinguishable from it for all legal purposes.

    Politics aside, the interesting linguistic question is whether people commonly think of a thing as identical to itself. E.g, if you show people an array of geometrical shapes, then point to one of them and ask them how many in the array are identical to that one, what percentage will count the shape being pointed to?

    My hunch is that the percentage is small, though higher among people with degrees, but that's just a hunch. Anyone got actual facts?

  12. Will said,

    November 19, 2009 @ 4:21 pm

    @Bill — that was the first thing that came to my mind as well — this amendment seems to allow for any type of legally recognized union between individuals as long as it is *not* between a man and a woman. Its wording conveys the diametric opposite of the intent of its authors.

  13. MJ said,

    November 19, 2009 @ 4:28 pm

    Yeah, Robert's got a point. There's a perfectly good sense of 'identical' where it applies to two things that are not numerically identical:

    OED, identical, Df. 2a. Agreeing entirely in material, constitution, properties, qualities, or meaning: said of two or more things which are equal parts of one uniform whole, individual examples of one species, or copies of one type, so that any one of them may, for all purposes, or for the purposes contemplated, be substituted for any other.

    If furthermore on this usage 'identical' doesn't apply to two (er, one) things that are numerically identical, then there's a perfectly good reading of the passage, that is both a literal semantic one and the intended one. And I think there's good evidence 'identical' doesn't apply to one thing, on this reading: we're not inclined to say 'Of course I have an identical twin, namely, myself.'

    [(myl) But surely the reason that you are not your own identical twin is that you're not your own twin, not that you're genetically different from yourself? I mean, you're not your own fraternal twin either.]

  14. Jon W said,

    November 19, 2009 @ 4:57 pm

    I think the post somewhat overstates Scalia's version of textualism. Here's Scalia on pp. 20-21 of his book (co-authored with Amy Gutmann) *A Matter of Interpretation*: "I acknowledge an interpretive doctrine of . . . 'scrivener's error,' where on the very face of the statute it is clear to the reader that a mistake of expression (rather than of legislative wisdom) has been made. . . . The objective import of such a statute is clear enough, and I think it not contrary to sound principles of interpretation, in such extreme cases, to give the totality of context precedence over a single word." It seems to me he would consider that principle to apply here.

    [(myl) I haven't read A Matter of Interpretation, and clearly I should. But my understanding of the traditional meaning of "scrivener's error" is consistent with the Wikipedia description:

    A clerical error is an error on part of an office worker, often a secretary or personal assistant. […]

    A clerical error in a legal document is called a scrivener's error. […]

    … where the parties to a contract make an oral agreement that, when reduced to a writing, is mis-transcribed, the aggrieved party is entitled to reformation so that the writing corresponds to the oral agreement.

    Whatever happened in the composition of that weirdly-drafted Texas constitutional amendment, it wasn't a "scrivener's error" in that sense.

    I suspect that you are right in believing that Justice Scalia, if asked, would interpret the Texas amendment in line with the clear intent of its drafters, and might even use intent-related language in explaining himself, as he did in the decision that I discussed here, where he rejected an interpretation "that no sensible person could have intended". But this would increase my skepticism that his commitment to intent-free textual interpretation is deep or consistent.]

  15. Robert said,

    November 19, 2009 @ 5:10 pm

    Identical twins aren't the same as each other; they're different people. That's a slightly different issue to not being your own twin. This is an instance of what seems to be the general trend: identical refers to things that are effectively the same, without actually being the same.

    My impression is that people will concede a thing is identical to itself, if you push the issue, but their first instinct is not to count the item itself as part of the set of things identical to it. Much like double negatives, logic and common usage differ.

    However, that is just my impression. Has anyone actually looked at how the word identical is normally used?

    [(myl) From a quick scan of concordance lines in COCA, the commonest use seems to be to refer to things that are identical as types but not as tokens, thus "Amplification occurs with each droplet so that each bead will end up carrying millions of identical copies of the initial DNA fragment" or "[changes] into his work clothes which he selects from a dozen identical pairs of khaki shirts and pants hanging in a closet".

    I think that this is consistent with the most obvious interpretation of "may not create or recognize any X similar or identical to Y", which is that instances of Y or anything like them are ruled out.

    Thus if the amendment had read, say, "… may not manufacture or possess any explosive identical or similar to trinitrotoluene", you'd naturally read it to forbid manufacture or possession of TNT, right?]

  16. Army1987 said,

    November 19, 2009 @ 6:00 pm

    While they obviously didn't *intend* to ban marriage, I really wonder what the hell they had in mind when they wrote down the words "identical or".

  17. Dave said,

    November 19, 2009 @ 6:53 pm

    " "… may not manufacture or possess any explosive identical or similar to trinitrotoluene", you'd naturally read it to forbid manufacture or possession of TNT, right?]"

    Who would write this that way?

    The problem with example is that "trinitrotoluene" is "trinitrotoluene". It's not "identical" to itself in any way that adds meaning.

    The chemistry example is odd because, in one space, "trinitrotoluene" is a single thing and in another multple things (many molecules of "trinitrotoluene").

    "Identical" includes the notion of requiring the primary instance to exist because the term indicates a comparision of two or more objects.

  18. Mark P said,

    November 19, 2009 @ 6:56 pm

    I think they intended to ban civil unions as well as marriages, or generally anything that recognized rights similar to those granted to married couples.

  19. alex said,

    November 19, 2009 @ 6:58 pm

    @Army1987
    You ask "I really wonder what the hell they had in mind when they wrote down the words 'identical or.'"

    Here's a guess: They meant "equal to," but didn't want to use a word that reminded voters they were amending the state constitution to discriminate against people. One of the common arguments against extending civil rights to gay people is that these would be "special" rights, not "equal" rights. I think they were worried about losing votes if voters had to deliberately vote against something labelled "equal," but from the margin by which the amendment passed they needn't have been.

    The provision is there to prevent the state from effectively granting civil marriage in name only– even "separate but equal" is too equal for Texas.

  20. Rick S said,

    November 19, 2009 @ 7:02 pm

    I imagine what they had in mind was "…create or recognize any other legal status identical or similar in law to marriage." That, it seems to me, is a minimally controversial yet comprehensive interpretation of the actual wording. Of course, one could argue that, in law, there are some strong similarities between marriages and civil contracts.

  21. Dhananjay said,

    November 19, 2009 @ 7:13 pm

    In many contexts "X is identical to Y" (speaking loosely) implies "X is not the same as Y" (stricto sensu) by the Gricean Maxim of Quantity since "X is Y" would suffice. That's also why the TNT example sounds so funny.

  22. Robert said,

    November 19, 2009 @ 7:21 pm

    With 'may not manufacture or possess any explosive identical or similar to trinitrotoluene' I'd indeed read it as forbidding TNT, and wonder why it wasn't phrased as '… or possess TNT, or any similar explosive'. Such redundancy is a mild violation of linguistic norms.

    However, the only thing identical to TNT for all chemical purposes is TNT itself. Everything chemically identical to TNT is also called TNT.

    [(myl) Not true. If you go to the wikipedia page for TNT, you'll find that the official IUPAC name is "2-methyl-1,3,5-trinitrobenzene", and you'll find a list of "other names": 2,4,6-Trinitrotoluene, TNT, Trilite, Tolite, Trinol, Trotyl, Tritolo, Tritolol, Triton, Tritone, Trotol, Trinitrotoluol, 2,4,6-Trinitromethylbenzene.]

    With marriage. there could potentially be a legal status identical to it for all legal purposes which is not identical for all purposes, and which some groups would vehemently deny was true marriage.

    Quintessential TNT is defined by its chemical formula. Quintessential marriage might be defined by lawyers, but religion and custom also claim a say – a different situation. What 'the same type' means is more complex in this case.

    With '"may not create or recognize any X similar or identical to Y", if the only thing identical as type to Y is Y itself, I'd read it as forbidding Y and wonder about the redundancy. If there are thing other than Y of identical type, I'd read it as forbidding those, but not Y itself – i.e same type, different token – though the larger context might overrule.

  23. Simon Spero said,

    November 19, 2009 @ 8:44 pm

    [IANL – Paging Dr. Shuy, Dr. Roger Shuy]
    Whilst ordinary discourse has its Maxims, statutory and constitutional construction has its canons.

    In Texas, these canons are provided by the Code Construction Act, which applies to constitutional as well as statutory construction (See opinion of Texas Attorney General).

    The relevant canon here is the principal that one should construe a statute (or amendment) so as to:

    give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.” – Montclair v. Ramsdell, 107 U.S. 147, 152 (1883).

    In the Texas code this is provided for in §311.021:

    Sec. 311.021. INTENTION IN ENACTMENT OF STATUTES. In enacting a statute, it is presumed that:
    […]
    (2) the entire statute is intended to be effective – Code Construction Act (op.cit).

    The amendment added a new section to the Texas constition, containing two paragraphs:

    Sec. 32.
    (a) Marriage in this state shall consist only of the union of one man and one woman.
    (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

    Assuming, arguendo, that (b) is subject to at least two interpretations, one of which is to prohibit creating or recognizing any legal status "identical to or similar to marriage", and the other prohibiting creating or recognizing new or additional statuses etc., the second reading applies, since otherwise paragraph (a) is "mere surplusage".

    (Scalia accepts that principle against "mere surplusage", but believes it should be limited: see his dissent in Moskal v. United States, 498 U.S. 103 (1990) at 120. )

  24. J. Goard said,

    November 19, 2009 @ 9:20 pm

    Here's a guess: They meant "equal to," but didn't want to use a word that reminded voters they were amending the state constitution to discriminate against people. One of the common arguments against extending civil rights to gay people is that these would be "special" rights, not "equal" rights.

    That's my problem with deontological reasoning in general, and especially for what we call anti-discrimination: it is dependent upon the particular formulation of a "right". If the opponents of gay marriage assert that a gay man has exactly the same right as I do, i.e. to marry a woman, I'm not sure I would have a good deontological argument against them. That is to say, any decent argument I would make would rely upon various consequentialist factors (e.g. couples who can't marry suffer a lot, married gay couples don't harm other people, the stability of marriage is good for social order) which would render the deontological appeal to "equal rights" vacuous.

  25. Neal Goldfarb said,

    November 19, 2009 @ 9:53 pm

    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.

    The first step would be to look at dictionary definitions of identical and similar, which would show that each word can be used to refer to different tokens that are of identical or similar types. Cf. Mark’s comment above based on the COCA, which Scalia would use to argue that the multiple-token use represents the word’s “ordinary meaning.” (The quote marks aren’t intended as scare quotes; rather, they’re there because “ordinary meaning” is the phrase Scalia would use. See, e.g., his dissent in Smith v. U.S.)

    (Let me inject another point here, though it draws more on linguistics than on legal analysis. The phrase any legal status similar or identical to marriage could be viewed as being semantically underspecified. Through a process of pragmatic enrichment (or should that be “pragmatic narrowing”?), it could be interpreted to mean any legal status similar or identical to marriage in its legal effect.)

    The next step would be to read the phrase at issue in the context of the statute as a whole. This would reveal several cues pointing away from the interpretation that all marriage has been outlawed in Texas.

    First, as Bill W. notes, section (a) of the statute says, “Marriage in this state shall consist only of the union of one man and one woman.” This is inconsistent with the notion that section (b) prohibits the recognition of marriage as a legal status. Even if there’s a way to somehow reconcile the two as a matter of logic, the marriage-is-illegal interpretation is certainly much less consistent with section (a) than the alternative interpretation. When courts are faced with choosing between an interpretation under which the provision at issue is harmonized with other parts of the same law and one in which it conflicts with those other parts, they go with the former.

    Second, section (b) prohibits the state or its political subdivisions from “creat[ing]” a legal status similar or identical to marriage. If marriage itself is a legal status similar or identical to marriage, the statute prohibits the state or its subdivisions from creating marriage. That would be absurd. Marriage already existed when the statute was enacted, so prohibiting its creation would be an exercise in futility. Moreover, section (a) presupposes (or should that be “implicates”?) that marriage would continue to exist after the statute took effect.

    And there’s more. Under the marriage-is-illegal interpretation, the prohibition against recognizing marriage would have the effect of changing the legal status of every married person in Texas. This would be enormously disruptive and would upset people’s vested legal rights. Statutes are presumed not to have such an effect. In other words, statutes are not interpreted as having such an effect unless that interpretation is compelled by the statute’s language, which isn’t the case here.

    Of course, none of this is to say that Mark’s skepticism about Scalia’s theory of meaning is unjustified. What it shows, rather, is that a Scalian judge would have analytical (or should that be “rhetorical”?) tools at his disposal that would enable him to reach the commonsense interpretation without having to overtly invoke the lawmaker’s intent.

  26. Garrett Wollman said,

    November 19, 2009 @ 11:21 pm

    Mark: with respect to Scalia, originalism, and question raised by a commenter above about "whose intent matters", may I suggest:

    Colby, Thomas and Smith, Peter J., Living Originalism (October 7, 2009). GWU Legal Studies Research Paper No. 393; GWU Law School Public Law Research Paper No. 393; Duke Law Journal, Vol. 59, p. 239, 2009. Available at SSRN: http://ssrn.com/abstract=1090282

    (weird citation style generated by SSRN)

  27. Scriptor Ignotior said,

    November 20, 2009 @ 12:02 am

    However, the only thing identical to TNT for all chemical purposes is TNT itself. Everything chemically identical to TNT is also called TNT.

    That may be true of TNT (though I would prefer to speak TNT as "the only substance indistinguishable from TNT"). It is a different story with innumerable other substances. Vichy water, let us assume, is chemically indistinguishable from certain non-Vichy waters. And the case of Epsom salt is illustrative. OED:

    1. attrib. and Comb., as Epsom-water, the water of a mineral spring at Epsom; Epsom-salt (colloq. -salts), originally the salt (chiefly composed of magnesium sulphate) obtained from this water; now the popular name of magnesium sulphate however prepared.

    So if a statute banned sales of "any water identical or similar to Vichy water" or "any chemical salt identical or similar to Epsom salt", a court would surely determine that sales of Vichy water or sales of Epsom salts were to be included in the ban.

    But I agree with MYL concerning TNT also:

    Thus if the amendment had read, say, "… may not manufacture or possess any explosive identical or similar to trinitrotoluene", you'd naturally read it to forbid manufacture or possession of TNT, right?

    We have reasons adduced above; but also consider the OED sense cited above for "identical":

    2a. Agreeing entirely in material, constitution, properties, qualities, or meaning: said of two or more things which are equal parts of one uniform whole, individual examples of one species, or copies of one type, so that any one of them may, for all purposes, or for the purposes contemplated, be substituted for any other.

    This ought to be examined along with the immediately preceding definition:

    1. The same; the very same: said of one thing (or set of things) viewed at different times or in different relations. (Often emphasized by same, very.)

    It would be wrongheaded to exclude A from being identical to A simply because A happened never to be "viewed at different times or in different relations"! Common to both definitions is the locution "said of", which is laden with certain implicatures. Just as A is robustly numerically identical to A, despite the perverse implicature we uncover in OED's definition 1, so is A also robustly qualitatively identical to A, despite an equally perverse implicature in definition 2a. It is because of our finding Satchmo and Louis Armstrong "qualitatively identical" that we eventually judge Satchmo and Louis Armstrong to be numerically identical; no appeal to OED's 2a should count against the process leading to that judgement, on the spurious ground that Satchmo and Louis Armstrong are not two entities but one!

  28. alex said,

    November 20, 2009 @ 2:08 am

    @J Goard

    "If the opponents of gay marriage assert that a gay man has exactly the same right as I do, i.e. to marry a woman, I'm not sure I would have a good deontological argument against them."

    Ah, but that gay man is being denied the right to marry a man, while a straight woman has that right. He is being denied equal rights based on his sex. If we want to be deontological about it, the principle isn't that all men have equal rights, but that all people do. Sometimes I think homophobia, at its base, is all based on a broader aversion to gender nonconformity (in this case, attraction to one's own sex).

  29. Corwin said,

    November 20, 2009 @ 2:35 am

    I work for a state legislature (not Texas), in the office where bills and amendments, memorials, and resolutions are drafted and revised, prepared as engrossed and enrolled documents, and eventually compiled as canonical reference publications. The amount of work that goes into constructing, analyzing, and editing each and every individual item, throughout its legislative life cycle, is astonishingly vast. Nary a sentence fails to undergo the scrutiny of at least several highly trained and experienced staff members at each stage in the game. I cannot speak for Texas' analogous procedure; however, I can attest that were such ambivalent and potentially disastrous language for a constitutional amendment to come under our scrutiny, it would be noticed, commented on, and brought to the attention of whomever was responsible for making sure the proposed language fit the designs of the legislator(s) who intended to introduce the measure. The very fact that the language of the amendment made it all the way to the voters and passed into law indicates to me that, necessarily, many people behind the scenes had objections to the wording, but were told that that was what was wanted by the amendment's proponent(s). In other words, I would caution against judging the grammatical and logical abilities of those Texans who work with writing legal language for a living; my suspicion is that Politics was the deciding factor in the final form of the proposed amendment.

    (I have not—yet—investigated how Texas gets its laws written and edited, and I have not examined the legislative history of the amendment in question, so I stand open to correction by anyone who knows more particulars.)

  30. Feynmaniac said,

    November 20, 2009 @ 4:55 am

    "Well. They did keep saying that gay marriage was a danger to traditional marriage.

    I just never thought they'd be right." – Sili

  31. Philip said,

    November 20, 2009 @ 8:33 am

    I think in both highly formal legal documents and informal speech – but not at intermediate levels of formality – it is quite common to make a multitude of equal statements that contradict each other, intending the most specific statement to apply; in other words, every such statement can be read with an extra “unless contradicted by a more specific statement herein".

    “I buy apples every day. I don’t buy apples on Sundays.” is informal, and interpreted easily as “I buy apples every day except Sundays". When challenged about making an untrue statement, the speaker might well defend themselves by claiming they were interrupted, and I’m tempted to argue that the full stop might not be the most appropriate punctuation mark here.

    I’m struggling to think of a very clear example in English, though I must admit I’m too lazy to check right now the constitutions of the Republic of Ireland and the English-language drafts for the new Iraqi constitution, but here is one from the German constitution: in one article, men and women are given equal rights. In another, military conscription is instituted for men only. To paraphrase,
    A. Men and women have identical rights and obligations.

    B. Men [but not women] are obliged to serve in the military if called upon to do so.

    Why this example? Because, like the Texas constitutional amendment, it is a potential (but similarly unlikely) legal pitfall: the citizenship test Germany has (or was going to?) introduce required candidates to answer a question by claiming that men and women have equal rights and obligations – by taking (A) out of context, and shifting the level of formality from the archaic ultra-formal German of the constitution to standard formal writing, the candidates will actually be making an incorrect statement if they answer the question “correctly".

    To summarise: In informal and very formal speech/writing, you cannot take a sentence delimited by full stops out of context and quote it. In standard formal writing, you can, and all restrictions to the validity of a sentence will be referenced in that sentence.

    Now, I think this would resolve the issue if the constitution read:
    A. Texas may recognise a marriage between a man and a woman.

    B. Texas must not recognise marriages.

    That would sound weird, but not weirder than the specific staatements making it legal to exceed the speed limit when overtaking in certain US states.

    I do not subscribe to the theory that “surplusage” is at all the same thing: that would mean any mathematically redundant statement in a law would become a free-for-all, or at least a free-for-all-judges.

    This is all a bit of an aside: the main debate appears to be whether the informal usage of “identical” to mean “similar but not identical” was intended here (I believe it wasn’t), is acceptable in legal writing (no, except for “identical twins", which is a sloppy phrase that can be understood but should be avoided); however, even the A/B example above would be okay legally.

    For what it’s worth, the legal _question_ is, of course, trivial to answer. Marriage between a man and a woman is specifically legislated in the Universal Declaration of Human Rights, which is a treaty made under the US constitution and thus supreme law of the land in the US. (Come to think of it, the UDHR does have an article allowing for exceptions, which would be another example of a contradiction meant to apply to the more specific case – and would make the taking-out-of-context quote I just made slightly inaccurate).

  32. Adrian said,

    November 20, 2009 @ 10:10 am

    I take it it's established above that ordinary English uses "identical to" to mean both:
    a) what philosophers would express by "indiscernible from", i.e., similar in all (relevant) respects; and
    b) what philosophers would express by "identical to", i.e., the exact same (token) thing as.

    It may be that examples like Mark's "TNT" or Scriptor Ignotior's "Vichy water" establish that a) is the default or natural reading of the expression "identical or similar to X".

    But that's not the end of the story, legally. It would be if the natural reading used the *only* available ordinary meaning of "identical to", but in this case there's an alternative. And since the natural reading is manifestly at odds with the plain intentions of the drafters, not to mention with any sensible reading of section 32(a), uncontroversial canons of interpretation say the provision has to be read in sense b). (See at least section 311.021(2) and 023(1) of the Code Construction Act (thanks Simon Spero).)

  33. Adrian said,

    November 20, 2009 @ 10:11 am

    Sorry, please reverse "sense b)" and "sense a)". D'oh.

  34. Army1987 said,

    November 20, 2009 @ 12:43 pm

    Maybe it's just that I'm a physicist, but to me "A and B are identical" often sounds just as a fancy way of saying "A is B".

    But this discussion made me think that I might have always misunderstood the statement "I would never want to belong to any club that would have someone like me for a member". I'd assumed it was a joke ultimately implying that "I would never want to belong to any club", but if the phrase "someone like me" can be taken *not* to include myself, then that sentence also has a straight meaning.

  35. Neal Goldfarb said,

    November 20, 2009 @ 1:41 pm

    Army1987:

    I'm afraid you have the quote wrong. It's "I wouldn't want to belong to any club that would have me as a member."

    But thanks for the lead-in:

    Mrs. Claypool: Mr. Driftwood, three months ago you promised to put me into society. In all that time, you've done nothing but draw a very handsome salary.

    Driftwood (retaliating): You think that's nothing, huh? How many men do you suppose are drawing a handsome salary nowadays? Why, you can count them on the fingers of one hand, my good woman.

    Mrs. Claypool (horrified): I'm not your good woman!

    Driftwood: Don't say that, Mrs. Claypool. I don't care what your past has been. To me, you'll always be my good woman. Because I love you. There. I didn't mean to tell you, but you…you dragged it out of me. I love you.

    Mrs. Claypool: It's rather difficult to believe that when I find you dining with another woman.

    Driftwood: That woman? Do you know why I sat with her?

    Mrs. Claypool: No.

    Driftwood: Because she reminded me of you.

    Mrs. Claypool: Really?

    Driftwood: Of course, that's why I'm sitting here with you. Because you remind me of you. Your eyes, your throat, your lips! Everything about you reminds me of you. Except you. How do you account for that? (If she figures that one out, she's good.)

  36. W. Kiernan said,

    November 20, 2009 @ 1:56 pm

    Neal Goldfarb: First, as Bill W. notes, section (a) of the statute says, “Marriage in this state shall consist only of the union of one man and one woman.” This is inconsistent with the notion that section (b) prohibits the recognition of marriage as a legal status. Even if there’s a way to somehow reconcile the two as a matter of logic, the marriage-is-illegal interpretation is certainly much less consistent with section (a) than the alternative interpretation.

    We all know it isn't what the creeps who promoted or voted for this amendment meant (which was "Gays?! Eeeew! We hate them! Let's treat 'em bad.") but I fail to see the contradiction or illogic in the statute's sentences as written. (a) defines "marriage" for the purpose of the statute, and (b) asserts that the state shall not recognize it or anything like it. In fact, if you were a Martian, conversant in English but unacquainted with the Texan way of thinking, I don't see how you could interpret it any other way.

  37. dwmacg said,

    November 20, 2009 @ 2:59 pm

    Since we're quoting Marxist views on marriage:

    Spaulding: Well, what do you say, girls? Are we all going to get married?
    Rittenhouse: All of us?
    Spaulding: All of us!
    Rittenhouse: Yes, but that's bigamy!
    Spaulding: Yes, and it's big of me too. It's big of all of us. Let's be big for a change. I'm sick of these conventional marriages. One woman and one man was good enough for your grandmother, but who wants to marry your grandmother?

  38. Dan T. said,

    November 20, 2009 @ 3:44 pm

    Yes.. if the amendment in question were on the subject of illegal drugs, and section (a) said "Narcotics are defined for the purpose of Texas law as drugs which [some description of their properties and effects]", and (b) said that anything identical or similar to narcotics was not to be made legal by the state or any of its subdivisions, then wouldn't it be clear that the intent and effect was to ensure the continued illegality of narcotics (as defined therein) and anything "similar" (in some ill-specified way)?

  39. The other Mark P said,

    November 20, 2009 @ 5:41 pm

    I agree with most people that if forced to choose between the two alternative options most Texan judges will take the option that marriage is not "identical to marriage".

    But surely there is a third option, which is striking it out? The clause has two possible meanings and is far too ambiguous. Citing the example of narcotics above, a lawyer could have a field day suggesting that Texas is interpreting the word identical in unidentical ways.

    Would a higher court not then throw the marriage clause out as unworkable?

  40. Smooth move, Texas « The Words on What… said,

    November 20, 2009 @ 6:22 pm

    […] the other hand, someone at the Language Log thinks that there is a way to dodge this […]

  41. Dmajor said,

    November 21, 2009 @ 12:28 am

    Wait! Wait!

    "Marriage in this state shall consist only of the union of one man and one woman."

    But WHICH one man and one woman? And once those two were married, what was everyone else supposed to do? How did they select the lucky couple?

    Until they die, move out of state, or get divorced, everybody else, of any sexual orientation, is just S.O.L.

  42. Davis said,

    November 21, 2009 @ 3:39 am

    Scalia doesn't need to jump through hoops to conclude this statute does not prohibit regular marriage.

    One of the standard "canons of construction" in statutory interpretation is the absurdity doctrine: "The Court presumes that a statutory application which offends widely and deeply held social values must represent a failure of expression or foresight, which the legislators surely would have corrected had it come to their attention." (Apologies, that's a quote from my class notes, I don't have the source handy.) Though it takes into account the legislative purpose, even staunch textualists like Scalia recognize the validity of the absurdity doctrine.

  43. J. Goard said,

    November 21, 2009 @ 11:23 am

    Me:
    "If the opponents of gay marriage assert that a gay man has exactly the same right as I do, i.e. to marry a woman, I'm not sure I would have a good deontological argument against them."

    Alex:
    "Ah, but that gay man is being denied the right to marry a man, while a straight woman has that right."

    So then we amend "marry a woman" to "marry someone of the opposite sex", "participate in a heterosexual marriage", etc. My point still stands, that we know which of infinitely many predicates to project as "rights" only on the basis of some kind of (explicit or implicit) consequentialist reasoning.

    Most of my fellow supporters of gay equality implicitly get the point, of course, which is why they don't generally support officially recognizing polygamous marriage. After all, another potential deontological formulation would suggest that John's right to marry Mary discriminates against Bob, who doesn't have the same right (since he's currently married to Sue). The difference, insofar as we accept one, is empirical (psycho-social, historical).

    The logic of "equality" by itself will not get you to just which "universal human rights" we ought to project, because there are infinitely many ways for two people's potential states to count as similar.

  44. Laws in general - Great Debates - City-Data Forum said,

    November 21, 2009 @ 3:30 pm

    […] Texas recently amended the state constitution to ban all marriages in Texas and invalidate those that already exist: Language Log

  45. Private Zydeco said,

    November 22, 2009 @ 5:43 pm

    Miffle Maffle. It seems, from this vantage point, anyhow,
    that the drafters have here committed what is another
    instance of an omitting of emendations made "mentally"
    as it were from the actual text as it appeared – some-
    one, somewhere along the pipeline having thought [he/
    she/they] wrote that. One solution being, in other words,
    to append a statement of qualification (adjective clause?)
    like, "which is not itself marriage betwixt two persons of
    opposite birth sex (and so forth)".

    Which is to say, it's a genuine error, made in the heat
    of what is widely seen as dubious rationalisation, and
    it comes off as resembling to a certain degree other
    cases of taboo avoidance.
    ance, insofar as

  46. Words, Damned Words, and Legalese said,

    November 22, 2009 @ 8:18 pm

    […] Log's Mark Liberman provokes an interesting discussion of legal interpretation in "Does marriage exist in Texas?": As I wrote in 2005, this seems to be an interesting case for theories of legal […]

  47. James Kabala said,

    November 23, 2009 @ 12:27 am

    Another possibility is that the authors of the amendment adhere to the traditional Christian belief that marriage is a pre-political institution not "created" by the state, and therefore the state can only create an institution similar to identical to marriage, not marriage itself. That wouldn't explain the ban on the state's "recognizing" such marriages, however.

  48. Chud said,

    November 23, 2009 @ 12:42 pm

    W. Kiernan: We all know it isn't what the creeps who promoted or voted for this amendment meant (which was "Gays?! Eeeew! We hate them! Let's treat 'em bad.")

    I suspect my father voted for this amendment. And he doesn't hate anyone. It may be something like "Hate the sin; love the sinner", though.

    And for calling my father a creep, you are an asshole. You'll find that some that show "creep-like" behavior can be persuaded to change that behavior, but an asshole will always be an asshole.

  49. Graeme said,

    November 24, 2009 @ 2:24 am

    Strict literalists (to use the English common law term) long recognised a slip rule for absurdly inconsistent results including obvious typos or drafting errors. It was called the 'golden rule' (no, not that one!). Precedent establishing this dates to cases from the 1830s and 1850s.

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