Here is the full text of the newly proposed section of Article I of the Texas Constitution, proposed by HJR 6, which has been passed by both chambers:
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.
As Jonathan points out, this bit would have the effect of banning marriage itself, since marriage is a legal status which is identical to marriage. This is clearly not what the authors of the amendment intend to do. So it seems clear that the authors of the amendment have made a mistake, and that what they meant to write is something other than what they did write. But I think it's actually sort of difficult to figure out what, exactly, they should have written instead. It looks like the word "identical" is causing the problem, so we might try simply dropping that word. For instance, we might try:
(b2) This state or a political subdivision of this state may not create or recognize any legal status similar to marriage.
But (b2) still has problems. Marriage is identical to marriage, but marriage is at least aruably similar to marriage as well. If so, then (b2) bans all marriage, just like the original (b) does. You might try to avoid this consequence by saying that marriage is not similar to marriage; you might want to say, for instance, that two things can be similar to one another, or identical to one another, but not both. Even if we say this, however, it is not clear how close a status must be to marriage in order to be considered "similar" to it. For instance: Being a person's business partner certainly has some things in common with being married to that person. If this means that being a business partner is "similar to" being married, then (b2) would prevent the state from recognizing business partnerships. That's bad.
So maybe we will want to leave aside talk of "similarity," as well as talk of identity. Here's a stab in that direction:
(b3) This state or a political subdivision of this state may not create or recognize any legal status other than marriage.
But (b3) is even worse than (b2). The state will want to recognize the status of being divorced, or the status of being an immigrant, or the status of being a convicted criminal, but these are all statuses other than marriage. So we clearly need some talk of similarity in our formulation.
Perhaps the problem with (b2) wasn't that it mentioned similarity, but that it did not say what kind of similarity was at issue. Perhaps what is needed is to talk about relevant similarities. For instance:
(b4) This state or a political subdivision of this state may not create or recognize any legal status relevantly similar to marriage.
Since marriage is arguably "relevantly similar" to itself, we again have the problem of prohibiting marriage. But we can avoid this by adding a few words to (b4) to yield:
(b5) This state or a political subdivision of this state may not create or recognize any legal status relevantly similar to marriage, other than marriage itself.
(b5) has a few clear advantages. First, (b5) wouldn't result in a ban on all marriage. Second, (b5) would allow the state to recognize the statuses of being divorced, of being an immigrant, and of being a convicted criminal, since these statuses are not relevantly similar to the status of being married. Third, it is at least probable that (b5) would not result in a ban on, say, state recognition of business partnerships, since (probably) business partnerships are not similar to marriage in whatever respects are supposed to be relevant. However, (b5) has the problem that it leaves open what "relevance" is supposed to be. Since it is unclear how to tell whether a particular status is "relevantly similar" to marriage, it is unclear how to tell whether a particular status is permitted or prohibited by (b5). It might turn out that certain statuses which the state needs to recognize are relevantly similar to the status of marriage; if so, then (b5) is fatally flawed. More importantly (from the perspective of the amendment's authors), it might turn out that "civil union," or some other legal status which is supposed to be a substitute for marriage for gay couples, is not relevantly similar to the status of marriage. If so, then (b5) would allow civil unions, in which case (b5) clearly does not do the thing which its authors intend it to do. In any case, we won't be able to tell what, exactly, (b5) says until we know what relevant similarity to marriage is, and how to determine whether it obtains in a given case.
I suspect that (b5) is probably very close to what the authors of the amendment wanted to get across. However, I think the ambiguity of the notion of "relevance" as it is employed in (b5) is probably too obvious for (b5) to be considered acceptable to lawyers. Perhaps this is why the authors chose not to use a formulation along the lines of (b5), and instead chose to use the original (b) as it appears above. The original (b) has the advantage of being less obviously ambiguous, and perhaps this advantage was thought to outweigh the disadvantage of having the obviously unintended consequence of banning all marriage.
