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Married in Texas? Check again, a political challenger says

A candidate for state attorney general blames the incumbent for faulty wording in a 2005 amendment to ban gay marriage, saying it puts all Texas unions in doubt.

November 22, 2009|Mcclatchy Newspapers

Austin, Texas — Texans, are you really married?

Maybe not.

Barbara Ann Radnofsky, a Houston lawyer and Democratic candidate for state attorney general, says 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 state 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."

The clause was intended to ban same-sex civil unions and domestic partnerships. But Radnofsky said the wording of Subsection B in effect "eliminates marriage in Texas," including common-law marriages.

She called it a "massive mistake" and blamed the attorney general, Republican Greg Abbott, for allowing the language to become part of the constitution. Radnofsky called on Abbott to acknowledge the wording as an error and consider an apology. She also said another amendment might be necessary to reverse the problem.

Abbott spokesman Jerry Strickland said the attorney general, who has not indicated whether he will seek reelection, stands behind the 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 the tactics opponents of the proposal used in 2005.

"It's a silly argument," said Kelly Shackelford, president of the Liberty Legal Institute in Plano, Texas.

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 was 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 other marriage-related issues.

"This breeds unneeded arguments, lawsuits and expense, which could have been avoided by good lawyering," she said.

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