AUSTIN, Texas — Texans: Are you really married?
Maybe not.
Barbara Ann Radnofsky, a Houston lawyer and Democratic
candidate for state attorney general, says that a 22-word clause in a 2005
constitutional amendment designed to ban gay marriages erroneously endangers
the legal status of all marriages in the state.
The amendment, approved by the Legislature and
overwhelmingly ratified by voters, declares that “marriage in this state
shall consist only of the union of one man and one woman.” But the
troublemaking phrase, as Radnofsky sees it, is Subsection B, which declares:
“This state or a political subdivision of this state
may not create or recognize any legal status identical or similar to
marriage.”
Architects of the amendment included the clause to ban
same-sex civil unions and domestic partnerships. But Radnofsky, who was a
member of the powerhouse Vinson & Elkins law firm in Houston for 27 years
until retiring in 2006, says the wording of Subsection B effectively
“eliminates marriage in Texas,” including common-law marriages.
She calls it a “massive mistake” and blames the
current attorney general, Republican Greg Abbott, for allowing the language to
become part of the Texas Constitution. Radnofsky called on Abbott to
acknowledge the wording as an error and consider an apology. She also said that
another constitutional amendment may be necessary to reverse the problem.
“You do not have to have a fancy law degree to read
this and understand what it plainly says,” said Radnofsky, who will be at
Texas Christian University on Wednesday as part of a five-city tour to kick off
her campaign.
Abbott spokesman Jerry Strickland said the attorney general
stands behind the 4-year-old amendment.
“The Texas Constitution and the marriage statute are
entirely constitutional,” Strickland said without commenting further on
Radnofsky’s statements. “We will continue to defend both in court.”
A conservative leader whose organization helped draft the
amendment dismissed Radnofsky’s position, saying it was similar to scare
tactics opponents unsuccessfully used against the proposal in 2005.
“It’s a silly argument,” said Kelly Shackelford,
president of the Liberty Legal Institute in Plano, Texas. Any lawsuit based on
the wording of Subsection B, he said, would have “about one chance in a
trillion” of being successful.
Shackelford said the clause was designed to be broad enough
to prevent the creation of domestic partnerships, civil unions or other
arrangements that would give same-sex couples many of the benefits of marriage.
Radnofsky acknowledged that the clause is not likely to
result in an overnight dismantling of marriages in Texas. But she said the
wording opens the door to legal claims involving spousal rights, insurance
claims, inheritance and a host other marriage-related issues.
“This breeds unneeded arguments, lawsuits and expense
which could have been avoided by good lawyering,” Radnofsky said.
“Yes, I believe the clear language of (Subsection) B bans all marriages,
and this is indeed a huge mistake.”
In October, Dallas District Judge Tena Callahan ruled that
the same-sex-marriage ban is unconstitutional because it stands in the way of
gay divorce. Abbott is appealing the ruling, which came in a divorce petition
involving two men who were married in Massachusetts in 2006.
Radnofsky, the Democratic nominee in the Senate race against
Kay Bailey Hutchison in 2006, said she voted against the amendment but didn’t
realize the legal implications until she began poring over the Texas
Constitution to prepare for the attorney general’s race. She said she holds
Abbott and his office responsible for not catching an “error of massive
proportions.”
“Whoever vetted the language in B must have been asleep
at the wheel,” she said.
Abbott, a former state Supreme Court justice who was elected
attorney general in 2002, has not indicated whether he will seek re-election
and is known to be interested in running for lieutenant governor. Ted Cruz, who
served as solicitor general under Abbott, is running for attorney general in
the Republican primary.
Radnofsky, who has not yet drawn a Democratic opponent, is
scheduled to appear at the Tarrant County Young Democrats Gubernatorial Forum
at 6:30 Wednesday at TCU.
Via McClatchy-Tribune News Service.
