Arguments Against the Texas Marriage Amendment are Poorly Worded
A common meme bouncing around the Texas blogosphere and media is the insinuation that proposition 2, the Texas Marriage Amendment, is “poorly worded” and would put traditional marriage itself in jeopardy. So, let’s have a look-see at the text of the amendment and see what this kerfuffle is really about (Click here to see the full amendment language).
"(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.”
Opponents say that section b is “poorly worded”; claiming the restriction on “legal status identical or similar to marriage” could invalidate all marriages in Texas. Attorney General Gregg Abbott is on record declaring, “In my legal judgment as Attorney General of the State of Texas, this argument is wholly without merit,” (click here for a full copy of his statement).
First, the Attorney General says state courts are bound by legislative intent and he cites the legislative intent of proposition 2 to safe guard traditional marriage. Personally, I also have a hard time visualizing 100 Texas House and 21 Texas Senate Members, many of whom are practicing attorneys and social conservatives, voting for a resolution that would make Texas a big hippy commune.
Attorney General Abbott, who has successfully argued before the US Supreme Court, goes on to say
“The plain language of Proposition 2 does not reflect any intent to annul traditional marriage. …Traditional marriage – between ‘one man and one woman’ – is not ‘identical or similar to’ marriage; it is marriage.”
I believe the correct, legal term for this finding is “D’uh!”
Another way to look at this language is to consider identical twins, Tommy and Terry. They look the same and sound the same. However, they are two, separate beings and may, in fact, have very different ambitions, gifts, desires, experiences, beliefs, and values. Tommy is identical to Terry, but Tommy is not Terry.
Of course, all the talk about the amendment being “poorly worded” from Margot Clarke and other homosexual activists is just a ruse to confuse voters. Instead of engaging the issue head on and making a case for why legalizing alternative forms of marriage could be a good idea, prop. 2 opponents resort to contrived robocalls.
Though, I also suspect that those holding to the “poorly worded” stratagem are simply groping about for a compromise position that reconciles conflicting desires. On one hand, they want to appear open minded and tolerant to their liberal friends. On the other, they know legalizing alternative forms of marriage is a bad idea for many reasons. The “poorly worded” maneuver enables them to be both for and against prop. 2.
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He has also unsuccessfully argued before the supreme court.
Not to mention, while on the Supreme Court Greg Abbott wrote the following opinion (6 years after the one that he uses to say you look at legislative intent)
In Republican Party of Texas v. Dietz, 940 S.W. 2nd 86, 89 (Tex. 1997), then Supreme Court Justice Greg Abbott wrote:
“When interpreting our state Constitution, we rely heavily on its literal text and are to give effect to its plain language.”
This is what strict constructionists do….literal language. read the language for yourself.
I noticed that in the wording are the terms”one man” and “one woman”. This is probably a good idea since there are a large group of polygamists that have moved and are moving to Colorado City, TX.
My concern over this is; What impacts plaural marriage, and same sex marriges would have on the Social security system and our private and public health system?
I couldn’t believe my eyes when I read Sunday’s editorial in the Chronicle. They are hoping for a large turnout by the youth in Texas to vote no to Prop 2.
Is Texas the only state with this prop or are there other states with similiar props?
If this passes will the state police round up all those polygymists in Coloardo City or will this just be a paper law? What really will happen to them?
Thank you for the link to the full text. I will be studying closely.
H.J.R. No. 6 - The so called Texas marriage amendment (text included below)
A “free church” is the term used for non-state sponsored churches in the Old World. My denomination has “Free Church” in its name but it is a 501c3 corporation. 501c3 churches, in my opinion, are state churches. Doubt this, pay attention at the end of a wedding and listen to what authorities the Pastor lists as granting him his powers to perform the ceremony.
Hence my concern with part (b).
(BTW, I have not read anything the current oponents have supposedly based their opposition. My concern arises from a study I did on the history of marriage licenses in these uS, about 2 years ago)
1) The first marriage licenses where created for the purpose of preventing miscegination.
2) For example, Alabama (if memory serves my right) had no marriage licenses prior to 1800. Back then a marriage was between a man and a woman, in a church, in a ceremony performed by a non-licensed pastor. A bible was signed by the marrying couple. That Bible was the marriage covenant. Did our great-great-grandparent live in sin or theirs was a Christian marriage?
3) Where in the Bible is the authority granted to a Pastor or to a government to “marry” anyone? Biblically, all marriages involves two families only.
4) Bad law creates bad outcome and its consequences are not predictable. Section (b) is not clear. Are “free church” marriages legal/lawfull?
5) A license is a government permit to do something that otherwise would be illegal. Think of hunting/fishing or driving licenses, for example. If the government can issue licenses for a “legal” marriage the government can also, then, stipulate the conditions that a license may remain valid. I am not arguing the “smarts” of the government requiring, for example, a bi-annual marriage class, but the principle of the goverment having the power to require such things to keep a license valid. And the opinion of the Texas Attorney General has no binding power on a future ruling by the Texas Supreme Court.
6) In what way a law like this one opens the door to the government into the operations of a church. Again, think on how a 501c3 church has to operate in order not to get into legal jeopardy. Ask your chuch board member on how being a 501c3 church affects their decision making.
Five Reasons Why Christians Should Not Obtain a State Marriage
http://hushmoney.org/MarriageLicense-5.htm
Mark A. Peterson: The Puritans and Gay Marriage
http://hnn.us/blogs/entries/4550.html
#5 The only problem with this is that in Texas, with common law marriage, if a couple lives together as married, then the state views them as married, and the marriage license then becomes a mere formality. If you don’t obtain a marriage license, but live together as a married couple, then the state has just as much sway over your marriage as it would with the license, rendering this particular pastor’s stance not much more than a protest or standing on principle.
jimb: Thanks for your response.
I’ve read the law re. common law marriage.
1) Each has agreed to be married to each other: implied or written.
2) The couple must live together.
3) The couple must hold themselves as being married to others.
The above is a common law marriage but it is not a Christian, covenant marriage. They are different.
Common law marriage is based on some legal definition. Christian marriage is based on a covenant before God, subject to Biblical rules about marriage and dissolution, before an assembly of fellow believers and involving only the couple. Nothing illegal about it, nothing requiring a license and, especially, no government papers signed.
#7 I agree with you regarding the definition of Christian marriage, but meeting the requirements of a Christian marriage would have the State of Texas recognizing that marriage as a common law marriage, anyway, so whether or not a piece of paper exists, the state is going to have some influence over the marriage…
But, at least, the church ought not to be complicit in putting herself under Caesar.
Jaime,
1 Peter 2:13-14
13 Submit yourselves for the Lord’s sake to every human institution, whether to a king as the one in authority,
14 or to governors as sent by him for the punishment of evildoers and the praise of those who do right.
You are miss-applying 1 Peter 2:13-14.
Only those things that are not the church’s purview. Marriage predates the even the law of Moses.
Would you also agree to licensing baptisms?
11 Jamie,
Really, I think perhaps you are trying to under apply this passage. This may not be the forum for it, but you need to show some exegetical analysis of why you believe I am mis-applying it. My reading of this passage indicates he was talking about Christians individually, not just the Church as a body.
It would clearly not apply where our human/worldy rulers institute laws in direct conflict with God’s laws. However, that isn’t so clear here. They are not forcing us to bow down to idols. (i.e. Daniel and Nebuchadnezzar) This is a law intended to facilitate the orderly operation of society.
Marriage relates to a societal contract. Baptism does not.
Read the verse again. Are non-licensed married people “evil doers to be punished?”
My guess is that you would not have quoted 1 Peter 2:13-14 to uphold the original intent of licensing marriages?
Marriages are as much a societal contract as baptism. Here we just hide baptisms inside the church walls. Baptisms are viewed to have such an impact in society that it is illegal to proselatyze or to convert to another religion.
Either way, please show me in the Bible where are Pastors called to become agents of Caesar.
13 Jaime,
And is the US Government not part of “every human institution”.
My church does not “hide baptisms inside the church walls”. We regularly have them in the fountain out front. We also perform them on public beaches when we have retreats.
Please show me where it is “illegal to proselatyze or to convert to another religion”. Please show me a law regulating the performance of baptism. I know of no law in the US relating to baptism. It is strictly a religious function.
Look, Jaime, you are free to have a marriage performed without involving the state. You still fall under common law marriage and the state is involved. You can either “Submit yourselves for the Lord’s sake to every human institution” or not. That is between you and God.
On the proselatyzing. I did not mean here in these uS. I was using it as an example on how such things as baptisms are a societal event. BTW, great to know that y’all do it in a public place. Kudos.
If a church is incorporated as a 501c3 it opens itself to issues with the law on all kinds of issues. What a corporation is (or can do) is proscribed by the laws that establish a corporation and when a church incorporates it agrees to abide by those rules. And what the rules stipulate can be changed according to the politics of the day.
Re. “submit yourselves for the Lord’s sake to every human institution” I suspect, again, that you would not go along with it if, in order to maintain your marriage license the government passed a law requiring that you go to a government licensed marriage/parenting/whatever class every year. Or a licensing fee of $5000 was required to obtain the license. The stupidity of such things is not in debate but the principle of the government’s power to establish requirements for licensing is not.
Again, marriage is outside the government’s purvue. Marriage is not an evil that must be punished. It predates all laws.
And a “common law marriage” is NOT a Christian marriage. It is different and just because the government created a definition that generally also describes a Christian marriage they are not the same.
1) Where in the Bible is the authority vested in the Pastor to perform a marriage?
2) Where in the Christian church history is the licensing of the Pastors ever condoned or taught as something to be desired? Are Pastors agents of Caesar or of Jesus Christ?
3) Find an example, in the Bible, where a marriage is performed by anyone other than the families.
4) It is God only that “joins” and the government has no role in that union. And yes, I do mean an union between a man and a woman.
5) If the proposed amendment 2 is used in the future to invalidate non-state licensed marriages would you agree with it?
Jonathan Mayhew “A Discourse Concerning Unlimited Submission and Non-Resistance to the Higher Powers”
http://www.lawandliberty.org/mayhew.htm
by Peter Kershaw:
http://hushmoney.org/UnlimitedSubmission_Mayhew.htm
Jonathan Mayhew (1720-1766) received his D.D. from Harvard in 1747. Shortly thereafter Mayhew was ordained as a Congregationalist Minister and pastored the West Church in Boston until his death in 1766.
John Adams called Rev. Mayhew “the morning gun of the Revolution.” Adams also dubbed him a “transcendent genius.” Robert Treat Paine called Dr. Mayhew, “The Father of Civil and Religious Liberty in Massachusetts and America.” No one today should underestimate the significant contribution that the Rev. Jonathan Mayhew made toward the cause of liberty and American independence.
(snip)
A couple of small problems with your argument regarding the meaning of ‘identical’:
1. Terry and Tommy may be identical twins, but I’d wager 100:1 bet that, if you were to ask, “Terry, are you identical to Tommy?”, Terry would say “no, we may be identical twins, but I’m my own person.”
2. Even if Terry is identical to Tommy, that doesn’t prove Tommy isn’t identical to Tommy!
A better example:
Person A: Jennifer and Brad are married.
Person B: Jennifer and Brad are in a state of union that is sanctioned by the State of Utah.
Person C: The meanings of what Person A and Person B said are identical.
Or, if you like:
Person A: Jennifer and Brad are married.
Person B: Jennifer and Brad are married.
Person C: Persons A and B just said identical things.
Another excellent example I’ve seen: If you take the word “marriage” and replace it with “bigamy”, you get:
“(a) Bigamy this state shall consist only of the union of one man and more than one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to bigamy.”
The meaning is clear–any legal status identical or similar to bigamy isn’t recognized, which means bigamy isn’t recognized.
21: You ignore the fact that, if this is challenged, the courts will look at legislative intent. The intent of the Legislature was obviously not to ban marriage.
21: The author of the article above seems to think that the amendment is not a sloppy piece of writing. I merely argue that it very sloppy, and the people trying to point out this sloppiness were not doing so because they were “homosexual activists” or because they needed “a ruse to confuse voters,” as stated in the article above.
Whether or not legislative intent will be the savior of Texas Marriage will soon be determined, one way or the other. However the Supreme Court decides to rule, it will set a precedent regarding the value of the plain text interpretation vs. legislative intent.