[news] Unintended Consequences: Texas Bans All Marriage

In honor of clever arguments, I'm going to begin collecting CLEVER ARGUMENTS against state and local bans on same-sex marriage. I begin with a doozey from Texas.

The Statute:

H.J.R. No. 6

A JOINT RESOLUTION proposing a constitutional amendment providing that marriage in this state consists only of the union of one man and one woman.

BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:

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.

The Cleverness:
Opponents to the amendment point out that (b) does not ban same-sex marriage, but actually creates an identity class of which marriage is a member--and then bans the whole class. Literalists would have to concede that a mix-couple marriage is "identical or similar to marriage," and therefore invalid. (link to article)

Clever Rating:
3/5.

Why it won't convince anybody:
Because no court in Texas is going to allow a poorly crafted statute to dissolve all marriages--even if, logically, that's what the statute claims to be doing. Even a strict literalist would dodge around this and say that (a)'s claim that "marriage ... shall consist" presupposes that marriages still exist after the statute is enacted. You interpret to fit your needs: that's what this legal game is all about.