Language Log

Is marriage identical or similar to itself?

Here's another challenge to Antonin Scalia's intention-free theory of legal meaning. On November 8, Texas voters will vote on the 434th amendment to the Texas state constitution, worded as follows:

SECTION 1. Article I, Texas Constitution, is amended by adding Section 32 to read as follows:
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.

Some opponents of the amendment, operating as "Save Texas Marriage", have pointed out that if you prohibit the state and its subdivisions from "creating or recognizing any legal status identical or similar to marriage", you appear to prohibit any form of marriage whatsoever, since whatever marriage may be, it surely is "a legal status identical or similar to" itself.

The arguments against this view lean heavily (and plausibly) on the question of legislative intent:

“They’re trying to play on words,” said amendment sponsor and State Rep. Warren Chisum (R-Pampa), according to the Associated Press. “Let me tell you, we had some very good legal scholars help put this language together.”

He said that when legislators discussed the proposed amendment earlier this year, they agreed that traditional and common law marriage would not be affected.

I'm sure that Rep. Chisum is right about the intent of the legislators. And even without any historical testimony about what the drafters had in mind, Chisum's interpretation is the obvious one on any intent-based theory of the meaning of meaning, for anyone with even the most general sense of the cultural context. However, the language of the amendment is another matter. If the Ledge paid those "very good legal scholars", they should ask for a refund.

On the other side , the Save Texas Marriage web site quotes various legal authorities in support of Scalia's viewpoint, with Nathan Hecht ("Conservative Republican Texas Supreme Court Justice") explaining that "when you're construing the Constitution of statue, you're stuck with what's there", and Greg Abbott ("Republican Texas Supreme Court Justice and current Attorney General of Texas") saying that "when interpreting our state Constitution, we rely heavily on its literal text and are to give effect to its plain language".

I suppose that this will be a matter for the Texas Supreme Court, not the Supreme Court of the United State, so we may never find out what Justice Scalia thinks about it. Still, it will be interesting to see if the Texas Supreme Court makes intentionalist arguments in interpreting the amendment.

Here's the full text of the legislative resolution:

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:
SECTION 1. Article I, Texas Constitution, is amended by adding Section 32 to read as follows:
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.
SECTION 2.
This state recognizes that through the designation of guardians, the appointment of agents, and the use of private contracts, persons may adequately and properly appoint guardians and arrange rights relating to hospital visitation, property, and the entitlement to proceeds of life insurance policies without the existence of any legal status identical or similar to marriage.
SECTION 3. This proposed constitutional amendment shall be submitted to the voters at an election to be held November 8, 2005. The ballot shall be printed to permit voting for or against the proposition: "The constitutional amendment providing that marriage in this state consists only of the union of one man and one woman and prohibiting this state or a political subdivision of this state from creating or recognizing any legal status identical or similar to marriage."

H.J.R. No. 6 was passed by the Texas House on April 25, 2005, and the Texas Senate on May 21, 2005.

[Update -- more here.]

Posted by Mark Liberman at November 2, 2005 08:29 AM