Gay Marriage | News | Texas

Atty General Candidate: Validity of All Texas Marriages Uncertain

A 2005 amendment banning same-sex marriage in the Texas may have inadvertently banned all marriages, says Houston attorney Barbara Ann Radnofsky, a candidate for attorney general.

The Fort Worth Star-Telegram reports: Radnofsky

"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.' 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."

Radnofsky made the claim as she began a statewide tour to kick off her campaign and called on the current attorney general, Greg Abbott, to "acknowledge the wording as an error and consider an apology." She says the error "opens the door to legal claims involving spousal rights, insurance claims, inheritance and a host other marriage-related issues."

In October, Dallas state District Judge Tena Callahan ruled that despite the constitutional amendment put in place by voters and the Texas Family Code, which prohibits same-sex marriage or civil unions, a gay couple can divorce in the state and the state prohibition of same-sex marriage violates the federal constitutional right to equal protection. The ruling effectively cleared the way for a challenge to the ban.

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  1. Funny, they were trying to "save" marriage and somehow ended up destroying it. Way to be, Texas.

    Posted by: Jesus | Nov 18, 2009 6:04:26 PM

  2. seeing as i am a good vassar grad, may i say I'M IN LOVE WITH SMART WOMEN! details like this show just how ridiculous and specious laws banning same sex marriage are. the right needs to fine tune their language for YEARS, and they can't quite figure out how to cut gays out of the equation legally.

    Posted by: casey | Nov 18, 2009 6:36:14 PM

  3. All can say is ha-ha you stupid bigots.
    I read on another blog that the anti-gay group say the admendment is fine. Sorry folks, but you can't have it both ways.

    Posted by: DairyQueen | Nov 18, 2009 6:44:10 PM

  4. Oh come on. They defined marriage as hetero, then said nothing else can be considered the same or similar. Subsection B doesn't exist in isolation; it's based on the wording that precedes it.

    Anyone honestly expect the Texas judiciary to support us on this one?

    Posted by: Paul R | Nov 18, 2009 7:46:04 PM

  5. The legislative intent is abundantly clear. It's a nice attempt at legal wrangling, but the reality is that if anyone were to threaten to sue the state and ask that all marriages be nullified the courts would simply inform the plaintiffs that the intent was to prohibit DPs or other means of getting around the gay marriage ban, and then strongly recommend that the legislature take some time to fix the statute.

    Posted by: DR | Nov 18, 2009 8:15:48 PM

  6. Could the judiciary regard subsection B as vague and therefore invalid, thus allowing for the creation of same-sex civil unions?

    Posted by: SmartVac | Nov 18, 2009 8:58:12 PM

  7. I believe that all those anti-domestic partnership clauses are inserted into those constitutional amendments so that this issue stays alive for as long as possible.

    Because it is a proven recruiting tool for the Republicans. Why would they want to amend with something legally bulletproof?

    Posted by: galore | Nov 18, 2009 9:00:04 PM

  8. From The Los Angeles Times...

    Judge orders compensation for gay couple denied benefits

    Posted by: Mark | Nov 18, 2009 10:35:23 PM

  9. They may have defined marriage as hetero, but then they deny its recognition.

    They also said "shall be" rather than "is" which complicates the status somewhat.

    Posted by: Mike | Nov 18, 2009 11:18:14 PM

  10. This whole thing may turn out to be nothing, but it gave me the best laugh I've had in ages. I read this earlier and laughed my head off for about twenty minutes, tears streaming down my face. Sometimes life just throws up the most amazing moments of pure poetry.

    Posted by: hoyden | Nov 19, 2009 8:12:52 AM

  11. Leave it to Texas. Maybe this will be Laura's last chance to be rid of Dubya.

    Posted by: Island Girly | Nov 19, 2009 8:53:10 AM

  12. I love a ballsy attorney! good on ya, girl! I'm sure it will come to nothing, but I bet it stopped their hearts for a second...

    Oh, what's this? You don't like when crazy laws restrict your rights? Feels good, huh?!

    Posted by: stephen | Nov 19, 2009 9:31:31 AM

  13. @Smartvac: No. When a law is examined by a court, the court will read it in its entirety. While Subsection B can be construed as vague, once read in context, it's very clear. Like I said earlier, she's doing some nice classroom gymnastics, but when you put it in front of a real-life Judge, it's not going to be nullified.

    Posted by: DR | Nov 19, 2009 9:38:52 AM

  14. They are saying that "legal status" is not marriage. She is saying that marriage is a "legal status". The problem is going to have little standing under the law.

    Posted by: anon | Nov 19, 2009 11:52:24 AM

  15. it may be a technicality, but this is exactly what a lawyer would look for to build a case. I don't this is a small thing. I think this is an opportunity.

    Posted by: Paul | Nov 19, 2009 1:08:50 PM

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