Gay Marriage Won't Undermine the Texas Constitution; its 483 Amendments Did That

Categories: Legal Battles

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Vic Holmes and Mark Phariss, the gay Plano couple suing to overturn Texas' ban on same-sex marriage, will be in San Antonio on Wednesday trying to convince a federal judge to allow their case to continue.

The battle lines are familiar by now. Gay marriage, proponents say, is a constitutionally protected right. Opponents point out that overturning the ban would subvert the will of Texas voters, who passed an amendment to the Texas Constitution outlawing same-sex unions in 2005.

From a legal standpoint, both positions are perfectly reasonable. Morally speaking, you know where you stand.

See also: Gay Plano Couple Sues to Overturn Texas' Gay Marriage Ban

Still, it's worth addressing a particularly ludicrous bit of fear-mongering coming from Texas Values, the state lobbying arm of the religious right. Yesterday, President Jonathan Saenz sent out an email warning supporters that the state's most important political document is in grave danger:

The very survival of our Texas Constitution is at stake. That's an extreme claim, but I'm not overstating a word--the threat justifies alarm. A legal battering ram is smashing against the walls of our founding document, threatening a breach that would unleash a tide of liberal, politically-correct agendas to sweep away our most cherished freedoms.

You see, "gay marriage" is about way more than wedding rings and marriage licenses--even worse than a legal stamp of approval for homosexual relationships. Those are bad enough, but please see the total threat. If its definition of marriage can be treated like a soiled tissue to be discarded at will, then the Texas Constitution means nothing. Our rights as Texans will just be ink on some aging parchment.

Saenz then trots out various hypotheticals (churches sued for refusing to marry same-sex couples; bakers targeted for refusing to provide cakes for gay weddings; etc.) as proof of the disaster that a pro-gay marriage ruling on Wednesday will bring.

There's a problem with this argument, and it has nothing to do with the Freudian implications of Saenz's warning that recently gay-married Houston Mayor Annise Parker is "forc[ing] her lifestyle down your throat and mine." It's that the Texas Constitution is a joke.

Well, there's a lot of important stuff in there. But the notion that it's some sacrosanct piece of political literature, perfect and immutable, is absurd. It's been amended 483 times. It's also too long, was designed to address the challenges Texans face 138 years ago, and has deep structural flaws that hamper effective governance.

The worst the federal judge can do is invalidate one single amendment that's all of eight years old. In other words, no constitutions are at risk of destruction on Wednesday. Just the entire institution of marriage, a few souls and the very fabric of humanity.

Carry on.

Send your story tips to the author, Eric Nicholson.


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36 comments
bushwood.smithie
bushwood.smithie

"Saenz then trots out various hypotheticals (churches sued for refusing to marry same-sex couples; bakers targeted for refusing to provide cakes for gay weddings; etc.)"


Not all hypothetical:


http://www.washingtontimes.com/news/2013/dec/6/colo-judge-bakery-discriminated-against-gay-couple/?page=all


http://www.outsidethebeltway.com/court-holds-that-wedding-photographer-cannot-refuse-service-to-gay-couples/


While I fully support gay marriage, I also support the right of private businesses and individuals to decide who they want to do business with.

Rumpunch1
Rumpunch1

The only reason Saenz should be worried out churches getting sued for refusing to perform gay weddings is due to the damage he and people like him have done to the concept of separation of church and state.  Its a two way street, they cry that they cannot always inject religion into politics, however are the first to scream when there is a "rumor" that politics (which they do not agree with) might be injected into their church.  Basically the same concept that should prevent you from pushing your will on others, protects you from the will of others.


As for the effects on the "value" of my marriage, there are none.  First my marriage is not a marketable security.  Second, for gay marriage to diminish its value, the new option would have to have a perceived greater value.  Finally, the institution of marriage has already taken plenty of hits from man/women unions, it cannot get worse.


Leave marriage to the churches.  Many other countries perform civil ceremonies in addition to the church ceremony.  A judge declares a legal union, while the church declares a spiritual.  If church is not your thing, you do not do the church part, yet retain all of the legal rights.  Different denominations have different thoughts on the matter, however within that denomination is the forum to have these discussions.  Many denominations have burned up a lot of capital by debating the legal aspects of certain issues. 



ThePosterFormerlyKnownasPaul
ThePosterFormerlyKnownasPaul topcommenter

Eric, please go study Texas history just a little bit.  There is a reason why the Texas Constitution must be amended in order to effect significant  legal change.


The current state constitution was set up in reaction to some of the excesses of Reconstruction, principally to avoid, or prevent, the legislature from passing unpopular laws.  It was set up this way to ensure that Texas government remained responsible to the populous.  It is also why the Legislature meets for only 140 days in odd numbered years for the regular session.


The amendment requirements requires a popular vote in order to effect the change.


I think it entirely appropriate that we have a state constitution amendment in order to allow "gay marriage".  That way we can see if this is truly a popular change or merely the will of a politically strong organization.


Before anyone gets after me, think about it for a minute.  How would  you feel about a measure being enacted that you think is inappropriate by the Legislature?

everlastingphelps
everlastingphelps topcommenter

So man up and make it 484, rather than trying to backdoor it in through the courts.

lakewoodhobo
lakewoodhobo

"Perfectly reasonable" my ass, Eric. Popular votes in one state do not invalidate the 14th amendment of the U.S. constitution. The constitution can only be amended after ratification by 3/4 of the states.

Sharon_Moreanus
Sharon_Moreanus topcommenter

PSSSSST PSSSST. Hey Jonathan.

The real soiled tissue is that Texas has the highest divorce rate in the country.

Myrna.Minkoff-Katz
Myrna.Minkoff-Katz topcommenter

While we're on the subject, it looks like another "Gays in the Military" battle.  Only this time it's the NFL.  I'm hearing the same crap from homophobes.  Gay people in the military have shown that they're professionals, there to do a job well, like everyone else.

Myrna.Minkoff-Katz
Myrna.Minkoff-Katz topcommenter

Right-wingers love that expression, "gay people are forcing their life style down your throat".  It's actually heteros doing that to gays. 

Montemalone
Montemalone topcommenter

" Opponents point out that overturning the ban would subvert the will of Texas voters, who passed an amendment to the Texas Constitution outlawing same-sex unions in 2005. 

From a legal standpoint, both positions are perfectly reasonable."

No, they're not.

A majority voting to oppress a minority by depriving them of rights accorded to others is not perfectly reasonable.

I believe somewhere in our history we had a little kerfluffle over some states' desire to treat a certain segment of the population a little differently from everybody else.


ScottsMerkin
ScottsMerkin topcommenter

@bvckvs  you are neither black nor a woman, so you didnt win shit for them

plainsman1
plainsman1

@bushwood.smithie - Aren't these cases a result of individual state anti-discrimination statutes that tie sexual discrimination to business permits?

dsmithy3211
dsmithy3211

@bushwood.smithie  So... let's go back to the days of kicking black people out of restaurants and firing pregnant or married women? Or firing old people?

wcvemail
wcvemail

@Rumpunch1  Coming from an oddly pen-named yet walk-the-walk Christian such as you, that's powerful. 

Montemalone
Montemalone topcommenter

@ThePosterFormerlyKnownasPaul  

We're not talking about criminal activity or regulating guns here. We're talking about something that provides rights and benefits and responsibilities for 2 people who wish to join together. 

Making it illegal for some and not for others is wrong, no matter how you slice it.


dsmithy3211
dsmithy3211

@everlastingphelps  The people of Texas should have manned up and made it 28 to the U.S. Constitution first instead of trying to backdoor it in through the Texas Constitution.

lebowski300
lebowski300

@everlastingphelps  By definition, the courts' doors are still on the front of the building. The courts are themselves, constitutionally-endowed to interpret the laws of the land. Using courts can deprive the victors a mandate, which is important, but they are not using any backdoor. Your use of that word is, like most everything you post, loaded and intellectually dishonest.

markzero
markzero

@Sharon_Moreanus  I wonder what the adultery and divorce rate is among politicians who say they are defenders of marriage? Anything to point fingers away from themselves...

Sharon_Moreanus
Sharon_Moreanus topcommenter

Yes and then they go home to their wife and kids.

Myrna.Minkoff-Katz
Myrna.Minkoff-Katz topcommenter

@Montemalone  Leave it up to Texas Republicans to take a precious word like "Constitution" and pervert it so that it's used to bludgeon people of color, non-Christians, immigrants, the poor, and the LBGT community.

everlastingphelps
everlastingphelps topcommenter

"We're not talking about criminal activity or regulating guns here. We're talking about something that provides rights and benefits and responsibilities for 2 people who wish to join together. "

Except gun rights actually ARE guaranteed by the US constitution, but fascists like you keep urging more racist restrictions on them.

pak152
pak152

@Montemalone @ThePosterFormerlyKnownasPaul  

" that provides rights and benefits and responsibilities for 2 people who wish to join together." what you fail to understand is that governments for centuries have defined who can and can not marry. forcing change through the courts does not solve the problem but rather it exasperates it. Just look at the abortion issue. 

marriage is a privilege defined by the government ie the people. Work through the legislative process to effect the change

ThePosterFormerlyKnownasPaul
ThePosterFormerlyKnownasPaul topcommenter

@Montemalone @ThePosterFormerlyKnownasPaul 

Then talk to your rep to get it on the ballot.

Besides, why is the state regulating marriage anyway?  'Splain dat wone Looocy ...


Besides, I say let them be just as miserable as the rest of us.

plainsman1
plainsman1

@pak152 - No, Loving v. Virginia ruled that marriage is a basic human right. Also, federal courts are now ruling that state prohibitions violate the Equal Protection Clause of the U.S.Constitution. Any Texas case that successfully reaches federal court will in all likelihood lead to invalidating any local prohibition. Nevada just abandoned a court fight it acknowledged it was not likely to win for just that reason.

Montemalone
Montemalone topcommenter

@ThePosterFormerlyKnownasPaul  

They already had a ballot, that's why there's already an amendment banning gay marriage.

That's what happens when you let bigots and assholes make laws against people that are different.

Sometimes it takes a few people to stand up and say "NO, that's wrong!". In this case, that's the courts. And the Feds.

Remember it's only been a few years now since the Feds overturned the laws making it illegal for me to stick my dick somewhere other than a vagina.

mavdog
mavdog topcommenter

@everlastingphelps

you are clearly wrong, and I showed it.

we aren't laughing with you, we're laughing at you.

mavdog
mavdog topcommenter

@everlastingphelps

good grief, you are such a ignorant prick..from your own link:

In the Civil Rights Cases (1883),. The Court ruled that the Thirteenth Amendment did not ban most forms of racial discrimination by non-government actors.

Attorneys in Plessy v. Ferguson (1896)The Supreme Court upheld state laws enforcing segregation under the "separate but equal" doctrine.

In Hodges v. United States (1906),The Supreme Court ruled that the federal statute, which outlawed conspiracies to deprive citizens of their liberty, was not authorized by the Thirteenth Amendment

Not until Jones v Mayer (1968) did the court rule that equality is just that, equality without qualification.

everlastingphelps
everlastingphelps topcommenter

@mavdog @everlastingphelps  Right, the 13th amendment had NOTHING to do with ending Jim Crow.  Whatever, fantasy man.  You realize that everyone reading this knows that you are an idiot, right?  Do you at least understand THAT much?

mavdog
mavdog topcommenter

@everlastingphelps

you are mistaken, the SCOTUS decisions for a century after passage of the 13th Amendment set up "seperate but equal" as an acceptable social structure.

if the 13th Amendment provided relief from the Jim Crow restrictions on individual's rights, there wouldn't have been the need for the vaious Civil Rights Acts.

It didn't, and there was the need for the Acts.

It wasn't until recent times (late 1960;s) the courts took the view of the 13th extending to individual rights.

you would know that if you were, you know, educated

everlastingphelps
everlastingphelps topcommenter

@mavdog @everlastingphelps  Every single court decision striking down aspects of Jim Crow was based on the 13th Amendment, not some sort of extra-constitutional shenanigans.  You would know that if you had read the article, or, you know, were educated.


Please, continue the beclowning.  It amuses me.

mavdog
mavdog topcommenter

@everlastingphelps

trying to understand how your reference to the 13th Amendment, which preceeded the Jim Crow laws that restricted minority rights, would "beclown" him.

Jim Crow laws were enacted by the majority to deny minorities rights the 13th was meant to grant.

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