Orin Kerr alerted me to some fascinating language in a Texas initiative purporting to stop same sex marriage. Here's the applicable text:

SECTION 1. Article I, Texas Constitution, is amended by adding Section 32 to read as follows:

Sec. 32.

(a) Marriage in this state shall consist only of the union of one man and one woman.

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

Further, at the risk of pointing out the obvious I would note that same sex unions are by definition not "between one man and one woman," nor are polygamous unions. (Nor would be any "union" between a human and an animal.) So, if (a) is read literally in conjuction with (b), because such "unions" are by definition not identical nor even similar to marriage, they are not prohibited, because they lack the defining feature of "one man and one woman." (See Joshua's comment to the Orin Kerr post.*)

I'm wondering then, what is being prohibited. What might go on between one man and one woman which could be described as "similar" or "identical" to marriage? Surely, marriage itself is not being prohibited. The only thing I can think of which is similar or identical to marriage under the literal words of the amendment would be common law marriage.

Unless that is being prohibited, the amendment has no meaning.

Why go to so much trouble just to stop common law marriages?

* It should be noted that other commenters argue that literal language should not be elevated above intent. But what is the intent here? Surely, if the intent was to prohibit only same sex marriage and not common law marriages, the language could have said so. Might there be a hidden intent? Once again, I think it's fair to ask whether this was a poor job of drafting, or whether something else is going on....

UPDATE: The Texas Legislature was warned about the common law marriage problem:

"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."

If it can be proven, how is stealth to be factored into the interpretation of intent?