Ever since Texas passed Prop 2 in 2005, I’ve been idly pondering how on earth to challenge this insanity. To be fair, I haven’t been pondering it the whole time, otherwise the last three years would be a considerable waste.
The trouble with Prop 2 is that it is indeed a state constitutional amendment, meaning there’s very limited avenues to challenge it. The most straightforward would be a new proposition to repeal the first, but given this amendment’s shameful public support, that seems absurdly unlikely. Judicial review would be the other avenue, but there’s two problems. First, being embedded in the state constitution, state courts can’t touch it. Second, federal courts are loath to intervene in what is widely considered a state’s issue. The right thing to do would be to challenge it federally on equal protection and civil rights grounds, but again, the feds are unlikely to go along.
I suggest a nuclear option. Let’s look at the wording of the amendment.
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.
Subsection (b) is very curiously worded. This state … may not create or recognize any legal status identical or similar to marriage. In other words, this state may not recognize marriage as a legal status. Therefore, any and all laws that pertain to marriage and now null and void, as the state can’t recognize the marriages in order to enforce said laws. Standing might be an issue, because most of these laws are simple definitions. You’d be hard pressed to prove you were harmed and, thus, had standing.
Unless you were going through a divorce. The judge is going to have to recognize your marriage in order to sever it. It’d be fun to see someone in the middle of a messy divorce make a motion…
Your honor, as you’ll see from Section 32(b) of the State Constitution, the state may not recognize this as a “marriage.” As such, divorce law doesn’t apply here… or anywhere.
If the judge refused, and things didn’t go their way, they could appeal up through the ranks and, possibly, have purchase to go federal with it. Sadly, this wouldn’t challenge the amendment directly, and even if all this transpired, the end-game probably wouldn’t be to toss out the amendment. However, it would force the state organizers to quickly repeal or revise said amendment, which would take time. A lot of time. In the mean time, divorce law has been stood completely on end, and they’ve actually done more factual damage to the concept of marriage than even they claim would be done by gay marriage. The hope would be that the movement would be dealt such a significant PR blow that they would have trouble passing a properly worded replacement.
This is, however, Texas. Even if the organizers are dealt such a blow, the replacement might still pass. Probably overwhelmingly. And then we’d be back at square one. But time will have passed, a victory will have been won, and maybe, just maybe, the cultural landscape will have continued its inexorable slide forward, and saner heads will prevail either here or elsewhere.
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