Barbara Ann Radnofsky, the Democratic candidate for Texas Attorney General says no marriages in the state of Texas may be legal because of the 2005 constitutional amendment banning same-sex marriage and unions.

The 2005 amendment approved by the Texas Legislature and overwhelmingly ratified by Texas voters, declares that “marriage in this state shall consist only of the union of one man and one woman.”  But the trouble-making 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.”

Radnofsky retired from the massive Vinson & Elkins Law Firm in 2006 after 27 years as a member.  Radnofsky says the wording of Subsection B effectively “eliminates marriage in Texas,” including common-law marriages.

Radnofsky criticized current Attorney General Greg Abbott for allowing the language to become part of the Texas Constitution.  “You do not have to have a fancy law degree to read this and understand what it plainly says,” Radnofsky stated.

Jerry Strickland, spokesman for current Attorney General Abbott quickly dismissed Radnofsky’s claims.  Abbott was appointed to the Texas Supreme Court by then-Governor George W. Bush, and elected attorney general in 2002.

The conservative Liberty Legal Institute in Plano that drafted the 2005 amendment acknowledged that Subsection B could be a problem, but downplayed the odds of it being successfully challenged in Texas courts.  The Liberty Legal Institute has been described as the ‘slip side‘ of the American Civil Liberties Union (“ACLU”) by the Dallas Morning News.  (source)

“This breeds unneeded arguments, lawsuits and expense which could have been avoided by good lawyering,” Radnofsky said. “Yes, I believe the clear language of B bans all marriages, and this is indeed a huge mistake.”

In October 2009, Dallas District Judge Tena Callahan ruled the Texas same-sex marriage ban unconstitutional because it stands in the way of gay divorce.  Attorney General Abbott is appealing the ruling, which came in a divorce petition involving two men who were married in the Commonwealth of Massachusetts in 2006.

“Whoever vetted the language in B must have been asleep at the wheel,” Radnofsky said.

The Attorney General is the chief legal officer of Texas, and is also a separate law enforcement agency.  The Office of the Attorney General dates all the way back to an executive ordinance Sam Houston, president of the Republic of Texas issued in 1836.