May 22, 2005
HJR6 and common-law marriage

So now that we're on the brink of enshrining a bit of bigotry in the state Constitution, it might be wise to ask: What are the unintended consequences of this? Will the proposed amendment affect common-law marriage? One person who testified before the Senate thinks so.


"It's fiscally irresponsible and constitutionally reckless," said Austin lawyer Robert Andrews, who says it could adversely affect common-law marriages in Texas despite lawmakers' assurances to the contrary.

Under current law, he said, people file a Declaration of Informal Marriage to register their common-law status at a courthouse and he thinks those declarations may be prohibited.

"They've gotten so overbroad with this, they've covered things they don't know they have," Andrews said. "I'm really concerned they blew it (in approving the resolution) . . . that they've covered three times as many people as they think they have."


State AG Greg Abbott disagrees. I'm sure a judge will be forced to sort it out eventually, and get called "activist" for his or her trouble. I've reproduced Andrews's testimony, as well as some other submitted written testimony, beneath the More link. You can find more here and here.

UPDATE: Marc Olivier puts it all together.

Supplemental Analysis and Written Testimony Prepared for the State Affairs Committee of the Texas Senate, Hearing on HJR 6, May 19, 2005

Prepared and Respectfully Submitted by:

Robert F, Andrews, J.D., M.Div.

Attorney at Law

Texas Bar Id: 01248850

Submitted on behalf of:

Jeffrey Mark Browner and Suzanne Eells Sanders, united in Informal Marriage

Rosemary Wetherold, Texas Resident and Taxpayer

On May 12, 2005, Judge Joseph F. Bataillon of the United States District Court for the District of Nebraska, sitting in Lincoln, issued his opinion in Citizens for Equal Protection v. Bruning (hereafter Bruning) declaring the Nebraska Constitutional Amendment banning same-sex unions unconstitutional. I called the attention of this Committee to this incredibly significant opinion which has enormous implications regarding the constitutionality of HJR 6 in a written submission on May 16, 2005, a copy of which is included with this submission and incorporated in it by reference. Bruning was issued subsequent to the adoption of the proposed constitutional Amendment by the Texas House of Representatives. It is the first opinion by a federal court to address amendments similar to HJR 6 which have been passed in various states. The effect of this opinion must be considered carefully by this committee before an Amendment to the Texas Bill of Rights is recommended to the full Senate, and especially in light of Section 29 of our Constitution (a copy of which is included for your reference) which would likely render Informal Marriage and Adoption by Estoppel void in many, if not all, circumstances, if the proposed amendment is added as Section 32 of our Bill of Rights.

Arguments on behalf of Jeffrey Mark Browner and Suzanne Eells Sanders, united in Informal Marriage

Jeffrey Mark Bowner and Suzanne Eslls Sanders decided between themselves to become married under common law in Texas. A copy of a document issued to them on March 31, 2005, by the County Clerk of Travis County entitled "Declaration and Registration of Informal Marriage" is attached hereto for your review.

I disagree with the Amendment's House sponsors regarding the question of whether the proposed Amendment would impact Jeff and Suzanne's Informal Marriage. It seems probable to me that it would do so, as their Informal Marriage was now enjoys a "legal status" recognized by obtaining a certificate of registration from a local County Clerk, who obviously acted as a "subdivision of this state." Other Informal Marriages are recognized by obtaining a divorce from a local court of competent jurisdiction. Section 29 of our Constitution would likely render any such decree or certificate void if the proposed Amendment were added as Section 32 of our Bill of Rights.

Section 29 would likewise impact the rights of children in gay and lesbian families to recognition of "Adoption by Estoppel" in Texas Probate and Family courts. This is an important legal right which our law extends to these children which may be lost by operation of Section 29 of the Constitution in interaction with the proposed Section 32.

Statement of Rosemary Wetherold, a Texas Taxpayer

My client Ms Wetherold has asked that I include the following statement in my submission to the Committee:

Like the vast majority of Texans, I am opposed to HJR 6 and any other attempt to target a particular segment of our society for discrimination. As someone who is "straight but not narrow," I do not want discrimination against me or anyone else to be written into the Texas Constitution. At a time when state funds are low, yet the needs of Texas citizens are great, do not waste taxpayers' money to pay for an election on an odious amendment that is likely unconstitutional.


Rosemary Wetherold, native Texan, lifelong Texas resident, and Texas taxpayer

Austin, TX 78735

Ms. Wetherold's concerns are augmented by the analysis I submitted to you on May 16, 2005, which notes the probable unconstitutionality of HJR 6. She is most concerned as a taxpayer that holding an election on the proposed amendment at his time would be fiscally irresponsible in light of the Senate's role as collective stewards of the taxpayers' money.

Conclusion

I hope this supplemental analysis is helpful to you. Proceeding further on HJR 6 would be fiscally irresponsible and constitutionally reckless. The impact of the proposed Amendment on Informal Marriage as accepted in Texas is dire. The impact upon children who might otherwise be able to benefit from the doctrine of Adoption by Estoppel poses a severe consequence to these children. The financial cost of an election on the proposed Amendment would needlessly burden Texas taxpayers in light of the Amendment's dubious constitutionality.

I want to thank each of your for your work in public service, for your consideration of my testimony and for your attention to the concerns of my clients and for your care for the Texas Constitution.


Excerpt (from a letter to Senator Madla) :


"I believe moving forward on HJR 6 at this time would be fiscally irresponsible and constitutionally reckless in light of the recent opinion by a federal district court in Lincoln, Nebraska, invalidating a similar amendment to the Nebraska Constitution. The ruling in the Nebraska case, Citizens for Equal Protection v. Bruning, a copy of which I provided to the Committee, was issued subsequent to the passage of HJR 6 by the Texas House, and ordinary principles of both fiscal and constitutional stewardship and prudence argue that time ought to spent studying the effect of the opinion on the proposed Texas amendment, rather than rushing the State headlong into a legal battle and potentially wasting taxpayer money on an election by acting on HJR 6 this session. There simply is no crisis impelling this rush, and plenty of principled, conservative arguments against it.

I do believe HJR 6 as currently proposed would impact "common law marriage" by denying legal recognition by the State or any political subdivision thereof (including the Bexar and Travis County Clerks) to "any legal status identical or similar to marriage." The proposed placement of HJR 6 as Section 32 of the Bill of Rights of the Texas Constitution, would afford the extraordinary provisions of Section 29 of the Bill of Rights to the proposed amendment and would render any act of any government agency, including the Bexar County Clerk, taken contrary to its provisions void.

In speaking with an attorney in the Attorney General's office this morning after Senator Staples announced the Attorney General had advised him the Amendment would not affect Informal Marriage, I became convinced the Attorney General's office simply did not consider this aspect of the Texas Constitution when reaching its opinion. As I understand the Attorney General's position, he feels "informal" or "common law" marriage is simply marriage and not an arrangement "similar to" marriage. I am afraid he is incorrect, especially given the strong emphasis in the House debate on protecting "Traditional Marriage" and the fact that common law marriage often is established in Texas by filing for divorce (and proving the marriage relationship through evidence) rather than by obtaining a marriage certificate. There is simply too much difference between statutory marriage and informal marriage in Texas to take the risk that an amendment added by Representative Talton on the House floor (now section 1(b) of the proposed Section 32 of the Bill of Rights) would negatively impact couples united in informal marriage, despite the Attorney General's quickly rendered informal opinion that it would not."

Citizens for Equal Protection v. Bruning (D. Neb., May 12, 2005) and HJR 6

An Analysis Prepared for the State Affairs Committee of the Texas Senate

Prepared and Respectfully Submitted by:

Robert F, Andrews

Attorney at Law

Texas Bar Id: 01248850

On May 12, 2005, Judge Joseph F. Bataillon of the United States District Court for the District of Nebraska, sitting in Lincoln, issued his opinion in Citizens for Equal Protection v. Bruning (hereafter Bruning) declaring the Nebraska Constitutional Amendment banning same-sex unions unconstitutional. This is an incredibly significant opinion which has enormous implications regarding the constitutionality of HJR 6. The Opinion was issued subsequent to the adoption of the proposed constitutional amendment by the Texas House of Representatives. It is the first opinion by a federal court to address amendments similar to HJR 6 which have been passed in various states. The effect of this opinion must be considered carefully by this committee before an Amendment to the Texas Bill of Rights is
recommended to the full Senate.


Background of Bruning

The Amendment under review in Bruning, now Article I, Section 29, of the Nebraska Constitution, was added to the Nebraska Constitution after a ballot imitative in November of 2000. It provides "[o]nly marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska." The Amendment proposed by HJR 6 is similar to the one enacted by Nebraska voters and found unconstitutional by the Bruning court in many ways.

Despite what you may hear, this is not an "activist judge" opinion, and it certainly did not legalize same-sex marriage in Nebraska. The opinion is almost wholly based on Romer v. Evans, 517 U.S. 620 (1996), and the Judge quite carefully followed the law. The Lawrence v. Texas, 539 U.S. 558 (2003), opinion is only cited once in the case.

Section 29 failed five separate constitutional tests, any one of which grounds would be sufficient for affirmance in the 8th Circuit. On first blush the Nebraska constitutional amendment appears unique, but there is a very striking parallel with HJR 6 which is strengthened by Section 2 of HJR 6, the section listing certain contractual rights which the "state recognizes," and by the language of Section 1(b) HJR 6 which prohibit the state or any subdivision thereof from creating or recognizing any "legal status identical or similar to marriage." (Emphasis Added). The placement of the proposed amendment in the Texas Bill of Rights, Article I of our Constitution, causes significant additional concerns in light of the Court's analysis in Bruning, because of the extraordinary protection given to provisions of the Texas Bill of Rights by Article I, Section 29, of the Texas Constitution, which provides that any action taken by any branch of the state government contrary to a provision of the Texas Bill of Rights "shall be void."

First Amendment Freedom of Political Organization. Section 29 prohibited or impaired Nebraska citizens from lobbying for laws which would protect them from discrimination or enhance their status by writing discrimination into the state's Constitution. The Court's findings were augmented by the overbreadth of the amendment. The proposed amendment to the Texas Constitution is similarly overbroad, prohibiting the state or any subdivision thereof from creating or recognizing "any legal status identical or similar to marriage." (HJR 6, Sect. 1 (b)).

Fourteenth Amendment Freedom of Intimate Association. The Bruning Court stated the Constitution "afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the state.' (Opinion at 14). It also noted "the legal status of, or state sanction upon, [such] a relationship is not controlling. (Opinion at 15), and cited Lawrence as holding that "the fact the governing majority in a state has traditionally viewed a particular practice as immoral is not sufficient reason for upholding a law prohibiting private consensual sexual behavior." (Opinion at 16).
Because the Supreme Court in Lawrence was construing a Texas statute, this provision has special application in our state.

First Amendment Right to Petition Government for Redress. The Bruning Court stated the right to petition, or to participate equally in the political process "can be impinged by a state constitutional amendment that 'alters the political process so that a targeted class is prohibited from obtaining legislative, executive, and judicial protection or redress from discrimination absent the consent of a majority of the electorate through the adoption of a constitutional amendment'" (Opinion at 18, citing Evans v. Romer (Evans I), 23). Section 29 "creates a barrier to participation in the political process that no minority population is ever likely to surmount." (Opinion at 23). The Court further noted the "[s]tate reads the amendment as rendering unconstitutional any proposed legislation that would elevate a same-sex relationship or agreement to the same plane as married persons." (Opinion at 21). This is very relevant to the proposed Texas amendment which would preclude recognition of any relationship "similar to marriage," (HJR 6, Sect. 1 (b)), and because of Section 29 of our Bill of Rights. The language "similar to marriage" is remarkably equivalent to "same plane as" marriage.

Fourteenth Amendment Equal Protection. This is the gravamen of the Court's ruling and it is based squarely on Romer. Notably the Bruning Court did not address the amendment's definition of marriage as between a man and a woman, which is similar to the language of HJR 6. That part of the amendment fell because the challenged portion and it were not severable. Of particular note is the Bruning Court's concern that the overbreadth of the amendment raised "the 'inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.'" (Opinion at 29, citing Romer at 634-35, emphasis added). In debate in the House on HJR 6, Repetitive Edwards referred to homosexuality as a "social disease." Because of comments like that made by Representative Edwards made in the floor debate in the House, the adoption by the House this session of the Talton amendment to SB 6, and the history of the Texas legislation criminalizing homosexual behavior evidence by Lawrence and noted in Bruning, the issue of animosity, or in equal protection term "animus" is more striking in Texas than it was in Nebraska.

The Bruning Court also noted Section 29 was too narrow to accomplish its stated purpose of protecting marriage because it "does not address other potential threats to the institution of marriage, such as divorce." (Opinion at 30-1). A similar defect in HJR 6 was called to the attention of the House by Representative Thompson and others during the floor debate.

The Bruning Court also found the amendment "was designed against the class it affects, making it status-based." (Opinion at 31). It "goes so far beyond defining marriage that the court can only conclude that the intent and purpose of the amendment is based on animus against this class." (Opinion at 31). The "similar to" language of Section 1(b) and the entirety of Section 2 of HJR 6 make a similar argument inevitable in Texas. Additionally, the great concern by sponsors of HJR 6 not to affect common law marriage in Texas shows the animus which arises from the classification of Texas' citizens drawn by HJR 6 is directed only at gay and lesbian relationships.

Bill of Attainder, U.S. Const. art. i, sect. 9, cl. 3. The critical issue in the Court's analysis of this matter was whether Section 29 was punitive. He found it was because it singled out a particular group and effectively disenfranchised them. (Opinion at 39-40). The intent of the amendment was found to be "to silence the plaintiff's views and dilute their political strength." (Opinion at 40). The "adoption" of the amendment "was motivated, to some extent, by either irrational fear of or an animus toward gays and lesbians." (Opinion at 41).

I hope this initial analysis is helpful to you. Please feel free to contact me at any time should you have questions regarding this analysis. I would like to add that I disagree with the amendment's sponsors regarding the question of whether the proposed amendment would impact common law marriage in Texas. It seems clear to me that it would do so, as common law marriage in our state is ordinarily normally established either by obtaining a form from a local County Clerk (who would obviously act as a "subdivision" of the state) or by obtaining a divorce from a local court of competent jurisdiction. Section 29 of our Constitution would likely render any such decree or certificate void if the proposed amendment were added as Section 32 of our Bill of Rights.


Section 29 - PROVISIONS OF BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT; TO FOREVER REMAIN INVIOLATE
To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to.
the following provisions, shall be void.

Posted by Charles Kuffner on May 22, 2005 to That's our Lege | TrackBack
Comments

You know, this amendment is really oddly worded. A literal reading would definitely seem to rule out common-law marriage. The funny thing is, it would seem to rule out ALL marriage! Check out my new entry on this topic:

http://ichikawa.blogspot.com/2005/05/texas-bans-marriage.html

Posted by: Jonathan on May 24, 2005 8:37 AM

You may be interested to learn this (from the ACLU):

In a ruling issued last week, a federal court struck down Nebraska's anti-gay union constitutional amendment that bans any and all forms of legal recognition for same-sex relationships, including domestic partnerships and other basic protections. The state is expected to appeal the case to the U.S. Court of Appeals for the 8th Circuit.

The Court noted in its ruling that the plaintiffs in the case had not requested any recognition of their relationships through marriage or any other legal status, but merely sought an equal opportunity to persuade legislators of the need for protections. Judge Joseph F. Bataillon went on to say, "The court finds Section 29 is a denial of access to one of our most fundamental sources of protection, the government. Such broad exclusion from 'an almost limitless number of transactions and endeavors that constitute ordinary civil life in a free society' is 'itself a denial of equal protections in the literal sense.'"

This may not hold up, of course, but it is based on the Evans v. Romer precedent which overturned Colorado's Amendment 2, so I wouldn't rule it out either.

Of course, the newly Owen-enhanced 5th Circuit will undoubtedly uphold our version, so this whole issue may well be headed to the Supreme Court.

Those midterm Senate elections are looking more and more important with each passing day.

Posted by: Mathwiz on May 27, 2005 4:54 PM

Whoops - looks like part of my previous comment is discussed at the "More.." link. I still think it's worth calling attention to, however.

Posted by: Mathwiz on May 27, 2005 4:59 PM