1 So if I go down to Texas and git me a second wife, it woun't really be valid but I can still have me a honeymoon night?

2

So...what part of the Constitution claims to give the federal and state governments the authority to 'legalize' marriage and define "domestic unions"?

 

 

3 So...what part of the Constitution

Hello!

4 "Did Texas Ban Marriage?" asks someone identical or similar to Gabriel Malor on a blog identical or similar to Ace of Spades HQ.

5 I think it's great that they banned marriage. Government should get out of the marriage business altogether. I don't want government distributing Holy Communion any more than I want them granting Holy Matrimony.

6

stupid political stunt by Radnofsky.  This claim was all across the state in 2005 and was debunked then - it was just a scare tactic to try and keep voters from passing the thing.  It's just a scare tactic now. 

Since the first part of the act clearly recognizes marriage between a man and a woman, the second part can only apply to any other  legal status.   It's a simple matter of statutory construction, which is why this has been in the constitution for 4 years now and no one has successfully challenged it.   Radnofsky is claiming she just realized this - BS!!!!  Like I said, I saw all these claims all over Texas 4 years ago.  They were nonsense then, and they're nonsense now.

7 One of the down sides of this otherwise great place to live.  These dingbat Texas voters pass damn near every constitutional amendment no matter how awful or poorly worded.

8 So... what part of the Constitutional requires Warren Bonesteel to be a douchebag?

9 So, yes, Texas banned marriage.

No, they didn't. Marriage isn't identical or similar to marriage. It is Marriage.
In the same sentence replace the word water for marriage.
Does it follow Texas banned water?

10 Beh. Always a stupid typo.

Still, Bonesteel's a douchbag. Any minute he'll launch into a rant about how we're no different than the lefties, he's the only truly principled person IN THE WORLD!!!!, blah, blah, blah.

11 Marriage isn't identical or similar to marriage. It is Marriage.

Rocks, marriage isn't identical to marriage?  Really?

12 Texans can sweat over whether any liberal judges will temporarily adopt a strictly textualist jurisprudence to cause trouble

Not that any liberals would intentionally throw the entire system in disarray to make a point.  Nah.  Never.

13 This will provide the basis for innumerable future sitcom plots.

14 Strict Interpretation.  I don't care about the intent of legislature or absurd results.  We're a nation of laws, not men.


"now Texans can sweat over whether any liberal judges will temporarily adopt a strictly textualist jurisprudence to cause trouble."

This is intriguing.  Are you implying that textualism isn't the only proper method of statutory interpretation?  Stating that it "cause trouble" is pretty bold; the implication there is that this method in this case would be wrong and that we should suddenly start gazing at intent and leg history and what not. 

I'd be very interested to hear about your judicial philosophy.  Seems like you just embraced the formalist critique (i.e. that it's all judicial action, whether you wrap yourself in the text or consider other factors).

15 Rocks, marriage isn't identical to marriage?  Really?

Posted by: Gabriel Malor at November 19, 2009 09:46 AM (Mi2wf)

Yes, really. How can something be identical to itself? Are you identical to Gabriel Malor? Or are you Gabriel Malor? You can't be both.

16 Rocks, marriage isn't identical to marriage?  Really?

The property of identity is not the same as being identical. If you have two identical books, you still have two of them. You cannot declare that, since they're identical, there is only one of them.

17 What are the implications for divorce then?

18 What are the implications for divorce then?

None, because Gabriel's talking out his ass.

19 It's just a constitution. Who cares about the actual words? Just give me everything I want and we're cool.

20 Part A:  The people through their constitution establish and define marriage.
Part B:  The legislature and the subdivision of the state can't change that or establish something similar.

21

The only way you could have avoided this mess is to do away with attorneys because its going to happen somehow even if there remained only one attorney in the entire world.

We are still intepreting what the plain text of the US Constitution says after 222 years so what do you expect.  

22 "..I doubt even the most conservative judge would fail to read the second part of the amendment.."

I hope your right.

23 "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."


depends on what the meaning of "is" is....

24 This whole situation is quite the conundrum for me...

I support the rights of gays to marry, but I abhor the moral pretense, deceit and contempt displayed by those who are pushing this right.

25 "We are still intepreting what the plain text of the US Constitution says after 222 years so what do you expect."

We're still interpreting what the "plain text" of the Bible says 1700 years later, too, and it's not lawyers driving it.  Context matters, and neither ancient Israel nor colonial America are the same context as America today.  An awful lot is presumed by the Constitution, both in terms of what's normal and in terms of what the reader should already know.

26 No it doesn't.  IDENTICAL means just like something that ALREADY EXISTS.  You can't have an IDENTICAL item without having the ORIGINAL.  All that the text states is that you can't create MORE types of marriage (that are IDENTICAL or SIMILAR).  

It says nothing about the original whatsoever.

27 People's Front of Judea gets an "A" for reading comprehension.  Unfortunately, there's a whole passel of lawyers that won't.

28 I'm still waiting for Texas to outlaw liberals.

29
Marriage is for SPLITTERS!

30

We're still interpreting what the "plain text" of the Bible says 1700 years later, too

Talk about not being identical or even similar.

31 if true, Divorce Atty,s  will go broke.

32 if true, Divorce Atty,s  will go broke.

You say that like it is a bad thing.

33 Rickshaw, imagine the wailing and gnashing of toofers.

34 So...what part of the Constitution claims to give the federal and state governments the authority to 'legalize' marriage and define "domestic unions"?

Typical liberal thought process.

Hey DA; the Constituion doesn't give the States a damn thing. It is the other way around. Why don't you at least try to get an education before you make a fool out of yourself.

35 Define irony:

For the liberals judges to make light of this reading of the law, they would have to read it literally.  Not a "living document", like everything else is.

Now if we can get them to treat the Constitution the same way.

36 Marriage? Never heard of it.

37 Texas didn't ban marriage. A place identical to Texas banned marriage.

38 No, DIVORCE is for SPLITTERS!!!

39 Leave it to a lawyer to find a loophole.  Then they wonder why they often rate no. 1 on most hated professional careers lists.

40 Identical is identical to the word identical.

41 If gay marriage is outlawed, only gay outlaws will get married.

42

If I said, "You cannot create a recipe identical to Oreo's" that doesn't make it so Oreo can't make their own cookies.  So, nope, Texas did not outlaw marriage; it outlawed anything attempting to be like marriage.

Also, Warren asks: "So...what part of the Constitution claims to give the federal and state governments the authority to 'legalize' marriage and define 'domestic unions'?"

Answer: None for the federal, but for the state governments: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."  That's the 10th Amendment.  So yes, states have the Constitutional right to define marriage for their states.

43 Fuck you fucking fuckers

44 Ummmm, yeah it would take a very liberal or extremely pro-gay (yeah I know, same thing) reading of the second part to think it outlaws marriage.  Meanwhile, back in the real world, which as much as I don't like Texas I must admit it's increasingly our last redoubt of reality, gays can scream all they want, real marriage is legal.

45

 So...no one has a constitutional argumement to support the feds and states rights to interfere in your personal lives? (Logical fallacies don't count.)

46 So...no one has a constitutional argumement to support the feds and states rights to interfere in your personal lives? (Logical fallacies don't count.)

You are not really that dumb are you?

47

Standard contract template:

Section 1 - "Marriage" is defined

Section 2 - "Marriage" is referenced

That DA candidate may be a hell of an attorney in her legal specialty, but I'd guess that specialty isn't contract law.

48

Sounds like a common object-oriented programming bug.

You can instantiate two objects which are identical in all their properties and methods. But if you compare the two, they come up different. That's because they are, after all, two separate objects.

Generally programmers will separate out their comparison for whether they are looking twice at the same duck, from that for whether they are looking at two objects which look and quack like ducks.

Texas designed its code for "identical to" which is a test for the second. The problem is that marriage itself is also identical to marriage. They should have coded also for a check on whether the incoming test case was marriage, and discounted that case.

49

Answer: None for the federal, but for the state governments: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."  That's the 10th Amendment.  So yes, states have the Constitutional right to define marriage for their states.

And, by extension, it's legitimate for the federal government to say no state is required to recognize the non-marriages created by other states.

50 You are not really that dumb are you?

Yes, he is.

51 So...what part of the Constitution Hey - don't forget about me!

52

 So...no one has a constitutional argumement to support the feds and states rights to interfere in your personal lives? (Logical fallacies don't count.)

Bonerhead, the government is not interfering AT ALL in your personal life. What is happening is it is refusing -- due to the peacefully expressed desires of the vast majority of voters -- to extend a particular form of contract to cover cases it has never in history covered.

Shack up with your boyfriend, girlfriend, gang, or pets and declare yourselves to be "married" -- unless one of them is incapable of consenting, the government won't give a rat's ass. But you won't get the government seal of approval for it, either.

53 everyone's already pointed it out:

No, they didn't. Marriage isn't identical or similar to marriage. It is Marriage.

I think everyone's pretty much pointed out the flaw in the argument.   

"Identical" cannot be defined as the object that it's being compared to.  The definition of the word all but makes this argument this Dumbocrat moot.

54 Come on, any reading like that is moronic.  It does not say that marriage is banned, but legal statuses similar to or identical to marriage.  Let's be a little more intelligent.

55

I didn't say the "marriage is illegal" reading was smart. I just said the reading was programmatically correct.

You can swear at your computer all you like, but if you write shitty code, you'll get shitty results. Likewise, you can curse lawyers and liberals all you like... but if you write the law in the wrong way, then you're going to get problems.

56 Because Democrat judges are such sticklers for the letter of the law...

Right?

57 Bender, you're not the first to be pwned by a hacker who cannot, himself, code worth a damn.

58

Anyway, just so y'all know where I stand: I'm a Texan who thinks "homosexual marriage" is a contradiction in terms. I don't think homosexual unions deserve the same rights as the norm.

But my *facepalm*ing here is directed at the idiot who wrote this poorly-worded law. FAIL, one might say.

59 Commenters are reading an implicit "other" in subpart B ("The state shall not recognize other legal statuses"), because they know the intent of the amendment. The point of my original post is that the text alone does not get you there.

Yes, it does. Identical and similar are descriptions of comparisons. Comparison requires more than one of something. You can not compare something to itself.
The one thing this clause doesn't ban is marriage because marriage is necessary to make the comparison, and the clause, work.

Forget the word marriage. Let's say the clause read like this instead.

"This state or a political subdivision of this state may not create or recognize any number identical or similar to 1."

If someone were suggesting that the number 2 represents a single object and was banned from doing that with this clause only a fool would suggest you have also banned the number 1. You can not prove 2 is not identical or similar to 1 unless 1 preexists your comparison. The comparison, and the clause, would totally break down without it.

60 And this is why most lawyers should be placed in burlap sacks and beaten with reeds.

For christ's sake, write the law as plainly and unambiguously as possible
so there can be no doubt as to what you are allowing and what you are
disallowing.

61 Yeah, I don't get it either. Plain reading does not exclude marriage simply because if it did, then you could not read the statute because it would use something that does not exist as a definition. You can play logic parlor games all you want but it says what it is supposed to say. This is why I say that it is a lawyre's job to cause problems, not to solve them.

62 Every part has to be given meaning.  If it banned marriage, then "identical to" would have no meaning.

63 Much ado about nothing. It's no more than an eventual loser trying to fan some life into the campaign.

Texas has plenty of case law on plain meaning and legislative intent. There is no way this goes anywhere.

64

"In Pari Materia: Upon the same subject matter or subject.

The in pari materia canon requires that statutory language be construed in the context of the whole act and that all statutes concerning the same subject matter be read together and, if possible, harmonized to avoid repeal by implication.⁵⁴ The term in pari materia signals a transition from a focus on the specific language at issue to an analysis of that language in the larger context of other statutes or language."

65

 Fortunately, I doubt even the most conservative judge would fail to read the second part of the amendment in light of the first part,

Refer to the 2nd Amendment of the Constitution and then would you want to place a bet?

66

Marriages, in times past, particularly when the Constitution was written, were conducted and recorded by religious leaders in churches. At that time, statist legalization and control of marriage wasn't a part of the 'programming.' It wasn't a part of the intent of the Founding Fathers and of those who designed our founding documents. It was unthinkable to such men and women.

Today, the government requires that all persons who perform a marriage ceremony be certified and registered by the government. Individuals who wish to become married must also register with the government, and in many states, be 'certified' in order to become married. The government must be paid for licenses, fees and certifications at every step of the process. Hundreds and even thousands of laws at the local, state and federal levels now determine who can become married and what penalties or advantages can be imposed on marriage or upon those whose private lives are not 'acceptable' to others. (in this matter, those who promote legalized gay marriages are no less guilty than those opposed to such 'unions.')

Where is the personal freedom in this institution when the government is so heavily involved?? Where is the right to privacy? The pursuit of happiness? Freedom of religion - or the right to be free from statist religious laws in such public affairs?

So...where's all of that small government conservatism, now? Where is the fiscal conservatism? Where are those who love freedom and who claim to support and defend the Constitution?

Logical fallacies offered in response to my queries are not addressing the bottom line nor are they questioning all of those decades of statist propaganda and indoctrination that has been the bane of your eXistenZ and which most of you claim to despise? Yet, you continue to parrot that propaganda and indocrination at every turn???

If the Texas law is defined as banning the legal instution of marriage, they will not only have restored a plain and simple reading of The US Constituion, but a a plain and simple reading of its own state constitution.

Ontology, history, English common law, upon which our own Constitution and other freedom documents are based, even the plain and simple meanings of commonly used words, rules against any other interpretation than what I have offered here.

 Government, at no level, has the Constituional authority to be involved in the private lives of American citizens, including their marriages or other relationships. Any other interpretation is the promotion of something all of you claim to hate, that is to say, and which your own words openly admit, you are actively promoting that which you claim to hate, which is statist control of your lives and the legalization of government tyranny over your own lives.

67

Rocks, your suggestion that the word "identical" in the second part implies a separate object being compared to the first ("identical to marriage, but not marriage as it was just defined") defies the text and the plain meaning of the word "identical." The text does not say, "identical or similar to marriage, but not marriage as it was just defined." It says "identical or similar to marriage." Identical. As in, "the same."

 

68 to me, it doesn't so much ban marriage, as it would technically remove government's involvement in marriage - i.e. no more marriages before judges (creation) and no more special benefits associated with it (recognition).  It doesn't say marriage is illegal, it just says the state cannot create nor show preference towards any marriage-like status... sort of like the 1st amendment when it comes to religion.

Generally, I'd say I'm cool with that... but that would open up a whole new can of worms... polygamy, child marriages, etc.

69 I disagree with your "textual" reading.It bans something identical or similar to marriage. It doesn't ban something that is marriage.

70 I seem to recall a dim memory from law school of a principal of statutory construction that says if a statute is reasonably subject to two interpretations, one of which nullifies the entire purpose of the statute, the court will apply the interpretation that is consistent with the clear purpose of the statute. 

71 68 to me, it doesn't so much ban marriage, as it would technically remove government's involvement in marriage - i.e. no more marriages before judges (creation) and no more special benefits associated with it (recognition).  It doesn't say marriage is illegal, it just says the state cannot create nor show preference towards any marriage-like status... sort of like the 1st amendment when it comes to religion.

Posted by: A.G. at November 19, 2009 12:09 PM (jBPzC)

That sounds like the best explanation yet.

72 (A) Definition: Marriage is between a man and a woman.

(B) Proscription: The state shall not recognize legal statuses identical to marriage.

Commenters are reading an implicit "other" in subpart B ("The state shall not recognize other legal statuses"), because they know the intent of the amendment. The point of my original post is that the text alone does not get you there.

But, the only thing "identical" to marriage is marriage, so even if you put the "other" in, then the words still carry the exact same meaning. If you want to be pedantic about this, then it is not just the word "other" that is missing, but the word "equivalent" that should replace "identical". "Identical" indicates identity, which is true for nothing but the actual object, itself.

Of course, this is what we get when we let people who don't know logic formulate and interpret law that is supposed to be logically-based.

73 Posted by: Gabriel Malor at November 19, 2009 11:50 AM (nPZxi)

And what is the meaning of "the same"? Gabe how can something be identical to itself? What is used to make the comparison when you only have one? "The same" as what? Only more than one of something can be "the same". Determining something is "the same" means you have made a comparison.

Identical, "the same" does not mean singular, which is what would be required for what you are suggesting to be true. Two objects may be "the same" in every way, shape and form of comparison, but they are not the same singular thing.
They are 2 things which are "the same".

You have a hammer. You can certainly say the object sitting next to it is "the same" and is therefore a hammer. But making the statement that everything identical to your hammer is not a hammer doesn't cause your hammer to no longer be a hammer. If it did that would mean there is no hammer. But yet you can bang nails all day with your non-hammer.

For what you are suggesting to be true the clause must first be rendered illogical.

74 Gabe how can something be identical to itself?

Posted by: Rocks at November 19, 2009 12:42 PM (Q1lie) An object is identical to nothing but itself. Both you and Gabe are wildly mistaken in your understandings of the meaning of "identical".

75 Texas has a Whorehouse in it!!

Lord have mercy on our souls!

76 "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."

Breaking it down:

..may not create any legal status identical or similar to marriage.  - no problem
..may not recognize any legal status similar to marriage.  - no problem
..may not recognize any legal status identical to marriage. - no problem

Does NOT say - may not recognize the legal status of marriage. 

English much?

77

So, yes, Texas banned marriage

Oh, baby, wait till I tell my wife of 28 years this little nugget. It's all over, no more taking out the trash, raking the freaking leaves, or trying to find the remote she put somewhere because it looked better there than where I always leave it. Yippee!

78 Posted by: progressoverpeace at November 19, 2009 12:48 PM (A46hP)

2  one ounce bars of 100% pure gold are identical but can have a different identity. They exist separately from each other. So, I have no idea what you are getting at here.

79 2 one ounce bars of 100% pure gold are identical but can have a different identity. They exist separately from each other. So, I have no idea what you are getting at here.

Posted by: Rocks at November 19, 2009 12:56 PM (Q1lie)

Incorrect. The two bars are identical "in value", or "in nature", but they are not "identical". There are many differences between them. They are only "identical" within some constrained context, which is what I have been saying.

The Texas statute states identity in "legal status", which takes care of that issue, unlike Gabe's example at the end of the post, which just states "identical" as objects.

Again, the correct term should be "equivalent" and the "other" needs to be included - since equivalence is reflexive. The "identical" in the statute is totally useless.

80 As far as any rewrite to the clause I would suggest adding the word "other" does nothing. Using "other" would suggest there are legal statuses which could be identical or similar legally to marriage and then ban them. It would give legal status and take it away in one breath. Very bad. Instead:

"This state or a political subdivision of this state may not create or recognize any legal status AS identical or similar to marriage."

This puts the comparison in it's proper place which is when the state would attempt to create or recognize a legal status, not after and would clearly set off marriage for those who seem to have such a problem with the very plain statement as it is already written.

81 The "identical" in the statute is totally useless.

Posted by: progressoverpeace at November 19, 2009 01:04 PM (A46hP)

By your definition identical is useless in any statement, not just this statue.

Perhaps you should start a movement to eliminate it's usage.

82 By your definition identical is useless in any statement, not just this statue.

Posted by: Rocks at November 19, 2009 01:11 PM (Q1lie)

Not at all. My point is that "identical" (with respect to legal status) is superfluous in this statute, since "similar" (with respect to legal status) includes identity.

83 "Identical" indicates identity, which is true for nothing but the actual object, itself.

Posted by: progressoverpeace at November 19, 2009 12:17 PM (A46hP)

 

That is absurb. Separate things can be identical, otherwise the meaning of the term is vitiated and the term irrelevant.

84

Not at all. My point is that "identical" (with respect to legal status) is superfluous in this statute, since "similar" (with respect to legal status) includes identity.

Posted by: progressoverpeace at November 19, 2009 01:17 PM (A46hP)

 

Identical and similar are different levels of "same-ness".

85 That is absurb. Separate things can be identical, otherwise the meaning of the term is vitiated and the term irrelevant.

Posted by: gm at November 19, 2009 01:18 PM (qhDcz)

Only within restricted contexts. If you take the gold bar example above, they are identical with respect to size? Well, that is impossible - though we can allow for a certain context of scale in that determnination. Are they identical in temperature? You are assuming that. You are are assuming that two different objects are identical, not as objects, but only within some restricted comparison, since there will always be some determination for which they differ. But to be identical, there must be NO DIFFERENCES. This can only be achieved for separate objects by restricting the comparison.

86 If you call a union between a man and a woman with x rights a marriage, it is a marriage. If you call a union between a man and a woman with x rights a monkey, it is identical to a marriage.

87

The term is necessary, however, because some enterprising lawyer may say that a same-sex union with x rights is not similar to a marriage because it has the same rights. Instead, they may argue, it is identical with a marriage. Without the identical or similar terminology, he case is easier to make. Use of both terms limits the ability of an activist judge of finding in favor of such an argument.

88 Would 2 bars of the same weight, length, height and comprised entirely of 100% gold atoms  aligned in exactly the same crystalline structure sitting in the same room at the exact same time be considered identical? Or does even the parts of their atoms need to move in exact synchronization?

You are rendering the use of the word identical as meaningless.

Reality is a restricted context.

89

Well, lets say yes. They outlawed any state recognition of marriage or similar unions and benefits.

So.....?

I mean, Oh noes! Whatever would I do without an official state certificate.

90 Identical and similar are different levels of "same-ness".

Posted by: gm at November 19, 2009 01:21 PM (qhDcz)

Yes. All identical objects are similar but similar objects are not necessarily identical. Once they include "similar", "identical" is unnecessary. That's all I was saying.

The term is necessary, however, because some enterprising lawyer may say that a same-sex union with x rights is not similar to a marriage because it has the same rights. Instead, they may argue, it is identical with a marriage. Without the identical or similar terminology, he case is easier to make. Use of both terms limits the ability of an activist judge of finding in favor of such an argument.

Posted by: gm at November 19, 2009 01:28 PM (qhDcz)

I don't argue with your point, here, but this is the problem with our legal system and the lack of logic - or even common sense understanding - in a field that requires a logical basis for its continued utility. The use of "similar" covers "identical" in any hard science. It is only in law, and soft sciences, that there would be a problem with such simple concepts.

I am never more disgusted with humanity than when I read judicial decisions and the "reasoning" behind them. They violate just about every law of logic and good sense - changing scales arbitrarily, being pedantic about isolated issues while ignoring similar (or even identical!) problems elsewhere in the same case, twisting the definitions of words into unrecognizable forms, attributing definitions to terms at will, ...

91

It says so right in the Bible.

If the State of Texas does not recognize and ordain your marriage, it is unholy.

Thou shalt not know a woman in your bed without the approval of the King of the Lone Stars, chosen by God Allmighty as His authority on Earth.

92 You are rendering the use of the word identical as meaningless.

Reality is a restricted context.

Posted by: Rocks at November 19, 2009 01:31 PM (Q1lie)

I'm just saying that "identity" needs to be qualified, as it is in the Texas statute, and as I did with the gold bars ('in value'). Often, this qualification is implicit and publicly understood, but it is still there.

93

Rick Perry is like the protestant Pope.

Which is just like the Catholic Pope, except without the bubble car.

94

Not at all. My point is that "identical" (with respect to legal status) is superfluous in this statute, since "similar" (with respect to legal status) includes identity.

Posted by: progressoverpeace at November 19, 2009 01:17 PM (A46hP)

I would agree with GM. It's not superfluous, it's mandatory.

Suggesting unions other  than a man and a woman are "identical" in every respect except genders is exactly what judges have used to determine that recognition of same-sex unions are required under Equal Protection clauses.  This statue would make it clear that no part of the state can suggest that they are identical or similar to marriage.

95 And 32% less italian.

96

People in comments seem to think it's mere "lawyering" to believe that if Texas had defined something in subpart A of the amendment that it could not have then banned it in subpart B. Except, of course, that's how laws get written all the time.

People are right, it is mere lawyering.  Only it's not "mere."  IT'S WHAT LAWYERS DO.

That's why, lots of times, we elect really smart lawyers, like Obama, to legislatures, because legislatures make laws, and ought to sit around and ponder word choice carefully BEFORE making said laws.

97 Identical is in no way a subset of similar in any effing science! 

(from The American Heritage Dictionary - paperback, what I have near to hand)

Identical - being exactly equal and alike
Similar  -  showing some resemblance; alike though not identical

98 Suggesting unions other than a man and a woman are "identical" in every respect except genders is exactly what judges have used to determine that recognition of same-sex unions are required under Equal Protection clauses.

Posted by: Rocks at November 19, 2009 01:41 PM (Q1lie)

Equal Protection rulings are among the worst that Mankind has ever seen. The idiocy involved in the bulk of them is enough to make the Rain Man blush. (On a side note, it's funny that many Equal Protection cases show no direct harm to any individual but plaintiffs are granted standing, whereas having a usurper in the Oval Office - which carries clear harm to every single citizen - has been granted no standing in any court) When judges are that stupid and belligerent, then adding any number of superfluous qualifications is not going to stop them. They'll just redefine, or ignore, whatever they want to arrive at their pre-ordained decisions, anyway.

I hate to break it to you, no wording of any statute will stop judges from arbitrarily imposing their will, if that is their intention. Considering that we have officially decided, as a nation, that empathy is a legitimate qualification for a SCOTUS justice, I don't hold out much hope for our judiciary doing anything correctly. But my point on 'similar' including 'identical' stands.

99

After grinding my way through this thread, I can only conclude thus:

 

Less Laywers

 

More cowbell!

 

mac :]

100

what part of the Constitution claims to give the federal and state governments the authority to 'legalize' marriage and define "domestic unions"?

 

The Constitution places very few restrictions on the state governments, as opposed to the federal. But this is in theory. In practice the Constitution has been a dead letter since the seventies at least.

101

Whoops - spellcheck is my friend. And proper grammar.

Less lawyers!

More cowbell!

mac :]

102 Way cool! Kelly and I are still living in sin according to this.

103 97 Identical is in no way a subset of similar in any effing science!

Identical triangles are similar.

(from The American Heritage Dictionary - paperback, what I have near to hand)

Identical - being exactly equal and alike

Similar - showing some resemblance; alike though not identical

Posted by: somejoe at November 19, 2009 01:44 PM (SSWdi)

Similar angles are the

Merriam-Webster - Similar:

1 : having characteristics in common : strictly comparable

2 : alike in substance or essentials

Dueling dictionaries.

104

In practice the Constitution has been a dead letter since the seventies at least.

No it hasn't.  It's just that we're the only ones who know what it says.

105

As with most things legal, an ounce of preparation is worth a pound of litigation.  If you start with clear and harmonious language, you avoid future problems.  The Texas amendment should stick, but one wishes they'd been more careful with their wording in the first place.

I'd argue that what we have here is a case of under-lawyering rather than over-lawyering.  For those who think this isn't significant, imagine you are Antonin Scalia III in 2109 trying to divine the intent of the Texas amendment.  The "plain language" is where you start, and you only look to statements of "legislative intent" where the language doesn't provide the answer.  Fortunately in this case that would get you where you need to go, but the fact remains that this contradictory phrasing could (and should) have been easily avoided.

106 I think that the government should get out of the business of approving marriages in the first place.

A marriage is either a solemn promise between two people, in which case the state is a 3rd party and has no standing in the matter; or it is a contract, in which case the state's only role is to enforce the terms of that contract. 

Laws can and should be written to define what constitutes a legal contract, but aside from this the state shouldn't be involved.  If I enter into a contract with someone, I don't need to get a license from the state to do it.  I don't need to go before a justice of the peace and have a little ceremony to certify the contract.  If there is a dispute I may need to hire a lawyer and go to court, but in such a case I am asking the state to intercede.  The state is not all up in my business from the get go.

I still say that gay marriage is just a political football, something for cultural traditionalists / social authoritarians and post modernists / Marxists to beat each other up with.  It is well chosen for this role because of how irrelevant it is.  It affects no one but gay people, who make up about 2% of the population on a good day.

The less real impact an issue has on people's lives, the more extreme the partisanship will be over it, and the less likely the issue is to ever be resolved.  Were it to be resolved, the antagonists would have to find some other irrelevancy to bitch about and defame one another over.

It is the same with the death penalty.  Who is affected by the death penalty?  Convicted murderers, their families, and the families of their victims.  That excludes 99.9% of the population right there.  Yet there is no end to the tongue wagging and finger pointing being done over it. 

The things in life that actually matter are usually those things that there is the least contention about.  The more fussing and fighting and carrying on there is about something, the less likely it is to actually matter.

107 Posted by: somejoe at November 19, 2009 01:44 PM (SSWdi)

So ... the standard phrase, "They are not just/merely similar, they are identical," is incorrect usage, in your view?

Look through SCOTUS rulings and you will find "similar" and "similarly" used when "identical" is subsumed into the context - i.e. identical action/behavior/process would not rule out what the court is dictating for "similar".

108 #9 by Rocks nails it.  It's not about "other".  The one exists: marriage.  The law says you cannot recognize anything similar or identical to that which exists already.  "Other" is a Clintonian wedge formation to crack the obvious mathematic logic of the statement as it stands.

Drop the "other" and read the actual logic.  The beauty of the logic is that it even prevents redefinition of that which exists--marriage--because it treats it as an a priori and immutable fact.

109 I'm sure someone has already posted this, but, if not, here goes:  actually, the law doesn't ban marriage.  Even textually.  It talks about "any legal status identical or similar to marriage."  The key words are *identical* and *similar.*  These are important, because they directly differentiate the status in question from the status of marriage.  Thus, the status in question cannot be identical or similar to marriage.  Even textually, it explicitly deals with a status that is NOT, be definition, marriage.

the sinner,

Patrick

110 Nope, I'm an idiot.  Sorry for wasting anyone's time.  I see it - the thing is, as a lawyer, I'm too use to trying to find the language and *use* it for a particular decision.  When I jumped out of character for a second, I finally saw the point.  Understood, and quite funny, really.  This *does* happen all the time, unfortunately!  Anyone else following the insanity behind the Consumer Protection Act, or whatever, regarding the lead in child toys?  I guess, recently, the committee that is supposed to enforce it found that absolutely no toys/objects would meet the exemption that was written into the law.  Yeah, we lawyers suck.  Big time.

the sinner,

Patrick

111 So how f'in stupid does someone have to be to not understand that:
1) X is legal only in circumstances Y and Z
2) J, even if it is similar to X, will not be legal.

Seems extremely clear cut. Marriage between a man and woman are legal; anything similar to marriage is not legal. How does one cancel the other?

Answer: It doesn't.  This is just some cuntstain democrat running for office trying to make hay while the sun is shining.  Too bad her head is crammed where the sun don't shine.

112

So how f'in stupid does someone have to be to not understand that:
1) X is legal only in circumstances Y and Z
2) J, even if it is similar to X, will not be legal.

Except that it doesn't actually say that, baboy. It says:
(1) X is defined.
(2) Legal statuses identical to X will not be created or recognized in the state of Texas.

They meant what you wrote. But they didn't actually vote for that.

113 Ok, now I'm just "dithering."  Seriously, looking at the language again, one could very well say that using the terms *identical* and *similar* necessarily mean they are not, in fact, marriage, as defined. 

So, yes:  A: Marriage is defined.
B: outlines what is illegal - anything that is identical or similar to Marriage.  However, if the law meant marriage, it would have said marriage.  Not something identical or similar to.

I guess you could see it both ways, really.  If you define the word *identical* to mean marriage, you could very well say that it does, in fact, outlaw marriage between a man and a woman.  On the other hand, by the very fact that the law uses the term *identical*, it is attempting to draw a distinction between that what the law is attempting to declare is illegal and that which is defined.

The illustration of laws defining things and then declaring them illegal in another section does happen, but every time (in California, any way) the subsequent section, the one that does the actual declarin' of illegality, says "X, as defined in section Y."  This law does not do that. 

Again, I guess you can simply see it either way.

the sinner,

Patrick

114

Classic time travel paradox.

If marriage is illegal because there can be no legal status identical to marriage, then there is no legal status of marriage to be identical to.

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