Texas Constitution Election November 8 [Archive]

greywheel

10-26-2005, 11:09 AM

The election is getting more and more press lately because of proposition 2 (at least here in the DFW area). Being as it was number 2 I wondered what the first or any other propositions were. Upon checking the Tarrant County Elections site I found the ballot. Upon reading the ballot I was confused by the wording so I sought out some knowledge. The Fort Worth Star-Telegram had an article on the election. But the article contained the same vague wording for the propositions as the ballot, with unsupported yes/no recommendations. So I checked the Dallas Morning News and they had a link to this document which I found very informational.

So I figured I would share.

Information on Upcoming Election (http://www.lwvtexas.org/PDF%20Files/VG%20Eng%202005%20REVISED.pdf)

Oh, Gee!!

10-26-2005, 11:31 AM

Did you see that stupid ass preacher throw himself on the floor in front of the SA City Council b/c they refused to answer whether they were in support of Prop. 2?

JoeChalupa

10-26-2005, 11:39 AM

I keep getting messages left on VM at home from some Pastor asking that we vote NO on Prop. 2 because Gov. Perry screwed up on the wording.

Yonivore

10-26-2005, 11:53 AM

I keep getting messages left on VM at home from some Pastor asking that we vote NO on Prop. 2 because Gov. Perry screwed up on the wording.
Yeah, sentence one of the proposition states that a marriage shall only be between one man and one woman.

Sentence two goes on to prohibit any law that would attempt to sanction anything that even resembled a marriage...possibly even those as defined in sentence one. Whooops!

Oh well, I'm trying to figure out how to break the news to my wife...about our soon-to-be annulled marriage of 13 years.

And, it wasn't Governor Perry; it was Warren Chisum.

Oh, Gee!!

10-26-2005, 12:50 PM

We should really be focusing on the real enemy of marriage: the common-law marriage. Time to catch up with the 21st century and ban common-law marriages.

SpursWoman

10-26-2005, 01:07 PM

We should really be focusing on the real enemy of marriage: the common-law marriage. Time to catch up with the 21st century and ban common-law marriages.

Why?

MannyIsGod

10-26-2005, 01:08 PM

Actually, it is time for the government to step out of the marriage business for good.

I'm torn on Prop 2. I obviously want to vote against it because it is meaningless and useless legislation that tries to legislate morality, but I'd almost rather see it struck down as illegal by either the state supreme court (hahahahah! We're in Texas after all) or a federal court.

I think of far more importance here in San Antonio is the vote on the ACCD bond. That vote needs to pass. The bond is a good one and those schools need the money pretty badly.

spurster

10-26-2005, 01:30 PM

Yes, the wording on Proposition 2 is a mess. What is the "union of one man and one woman"? What is identical to marriage other than marriage?

SpursWoman

10-26-2005, 01:36 PM

I've gotten the voice mail, too.... :fro

FromWayDowntown

10-26-2005, 01:41 PM

Why?

Yeah -- why abolish common law marriages?

Should we also abolish marriages that aren't formalized in a church service, too?

Ultimately, measures like this one will be challenged by persons who are outside of the scope of the constitutional amendment and these sorts of laws will be put before the United States Supreme Court which will be asked to decide whether the laws comport with the Equal Protection guarantees of the Fourteenth Amendment and/or the penumbral right to privacy. Somehow, if the laws are deemed to violate the United States Constitution, the chorus from the right will reprise the vapid "judicial activism" mantra, unconcerned with the fact that the Supreme Court is meant to function precisely in that fashion.

I, for one, can't wait.

MannyIsGod

10-26-2005, 01:48 PM

Yeah, name me one ban like this that has stood up in court. Just one.

Spurminator

10-26-2005, 01:50 PM

If Prop 2 gets passed, the worst it will be is another embarrassment for the state.

FromWayDowntown

10-26-2005, 02:07 PM

If Prop 2 gets passed, the worst it will be is another embarrassment for the state.

Well, Texas will join a number of other states that have passed similar legislation or Constitutional provisions. That the legislation has passed or the amendments have been ratified doesn't make the law Constitutional -- but the "anti-judicial activists" will tell you that any court that would strike down those laws could only be an activist court.

On a side note -- the sheer number of proposed constitutional amendments in an off-year election is, to me, indicative of both: (1) the fact that the Texas Constitution is simply unworkable any more; and (2) the brilliance of having a federal Constitution that is written in broad terms and not intended to address in piece-meal fashion every situation that may arise and require constitutional interpretation. Can you imagine what a mess the Federal Constitution would be if there was an attempt to address such minor issues as land rights in particular counties or even states by Constitutional amendment?

The Framers of the United States Constitution were simply brilliant.

Oh, Gee!!

10-26-2005, 03:17 PM

Common law marriage is recognized only in the following states:

Alabama
Colorado
District of Columbia (not really a state)
Georgia (if created before 1/1/97)
Idaho (if created before 1/1/96)
Iowa
Kansas
Montana
New Hampshire (for inheritance purposes only)
Ohio (if created before 10/10/91)
Oklahoma
Pennsylvania
Rhode Island
South Carolina
Texas
Utah

MannyIsGod

10-26-2005, 03:19 PM

Well, Texas will join a number of other states that have passed similar legislation or Constitutional provisions. That the legislation has passed or the amendments have been ratified doesn't make the law Constitutional -- but the "anti-judicial activists" will tell you that any court that would strike down those laws could only be an activist court.

On a side note -- the sheer number of proposed constitutional amendments in an off-year election is, to me, indicative of both: (1) the fact that the Texas Constitution is simply unworkable any more; and (2) the brilliance of having a federal Constitution that is written in broad terms and not intended to address in piece-meal fashion every situation that may arise and require constitutional interpretation. Can you imagine what a mess the Federal Constitution would be if there was an attempt to address such minor issues as land rights in particular counties or even states by Constitutional amendment?

The Framers of the United States Constitution were simply brilliant.
:lol

Or lucky? You decide!

SpursWoman

10-26-2005, 03:41 PM

Oh, Gee!!

10-26-2005, 03:48 PM

And....?

that's all, no other states.

SpursWoman

10-26-2005, 03:55 PM

There are also only a few states with no State Income Tax...should we just start implementing them in those states because they aren't in line with all of the others?

How is something not in line with what you think necessarily a bannable offense...or your business?

Oh, Gee!!

10-26-2005, 04:05 PM

How is something not in line with what you think necessarily a bannable offense...or your business?

Why can't I have an opinion about marriage? Is this not America? Am I not free to hold any belief I care to no matter how crazy it may seem to you or anyone else? What the fuck is going on here?

:pctoss :td :makemyday :bang

SpursWoman

10-26-2005, 04:08 PM

Yonivore

10-26-2005, 04:09 PM

Why can't I have an opinion about marriage? Is this not America? Am I not free to hold any belief I care to no matter how crazy it may seem to you or anyone else? What the fuck is going on here?

:pctoss :td :makemyday :bang
Well, you can have an opinion. And, yes, this is America. Further, you are free to hold any belief you care to -- yep, no matter how crazy it may seem to anyone else.

What's going on here is this. You've posted your opinion in a discussion forum where -- apparently as surprise to you -- it will be read, evaluated, and possibly commented upon by people who also have opinions, find themselves in America, hold differing beliefs than your own and think you're a lunatic.

Expect results that displease you.

Clandestino

10-26-2005, 04:10 PM

let the gays fucking get married, but fuck ACCD.. they already had a chance, but the poor people shot it down because they wanted a school in their neighborhood that they aren't going to go to anyway...

SpursWoman

10-26-2005, 04:19 PM

What's going on here is this. You've posted your opinion in a discussion forum where -- apparently as surprise to you -- it will be read, evaluated, and possibly commented upon by people who also have opinions, find themselves in America, hold differing beliefs than your own and think you're a lunatic.

Expect results that displease you.

Classic... :lmao :lmao

Oh, Gee!!

10-26-2005, 04:19 PM

You're free to bitch but I'm not free to disagree or question why? Why do you feel it's your business how others live their private lives if it in no way, shape or form interferes with how you live your own?

I think Common Law marriage is stupid because it is extremely easy to get a marriage license these days. We have Common Law marriage because in the olden days people in TX had to travel long distances to get to a justice of the peace to marry them.

Also, nobody really understands Common-Law marriage. Some people think that you're automatically Common-Law married if you live together for a certain amount of years or have kids together, neither are true.

Clandestino

10-26-2005, 04:22 PM

Also, nobody really understands Common-Law marriage. Some people think that you're automatically Common-Law married if you live together for a certain amount of years or have kids together, neither are true.

shit! if that were the case i'd have like 50 wives by now... everytime i date a chick she sneakily moves in until i boot her!

Yonivore

10-26-2005, 04:32 PM

shit! if that were the case i'd have like 50 wives by now... everytime i date a chick she sneakily moves in until i boot her!
All it takes is for a couple to make some representation that indicates they are living in a state of marriage; joint bank account, claiming to be married, joint debt, having a child, etc...

SpursWoman

10-26-2005, 04:33 PM

shit! if that were the case i'd have like 50 wives by now... everytime i date a chick she sneakily moves in until i boot her!

You owe me a new keyboard! :lmao :lmao :lmao

And you're right about not really understanding what makes you legally(?) married by common law. I think it's just perpetuated by men who are too chicken to take the plunge and think that's somehow good enough to get their women to STFU. :lmao :nerd

But still, it's not a big deal and it's not worth the time, effort or expense or having it officially banned when it's not hurting anyone at all.

Oh, Gee!!

10-26-2005, 04:34 PM

Furthermore, I speak with battered women on a daily basis. A great deal of them that aren't really common-law married are being told wrongly by police officers that they are in fact common-law married because they either live with or have a child with their abusers. No big deal you say. Except, the cops will refuse to escort the abuser off of the woman's property even though the house/apartment is solely in that woman's name. Rather, the cops say it is a civil matter, so they won't get involved. They are told they need a divorce to kick out their abusers. It's not that the cops are just being lazy (that's part of it), the police are misinformed as well. The woman is usually insistent that they aren't married; but they get the familiar response: "sorry, you live with him, you're married."

Oh, Gee!!

10-26-2005, 04:36 PM

All it takes is for a couple to make some representation that indicates they are living in a state of marriage; joint bank account, claiming to be married, joint debt, having a child, etc...

nope. They have to have an agreement (preferably in writing) to be married as well. Holding themselves out, or representing themselves, as married is but one factor.

greywheel

10-26-2005, 04:36 PM

Actually the rules for Common Law Marriages do sound kind of messed up to me.

http://www.co.travis.tx.us/dro/common_law.asp

SpursWoman

10-26-2005, 04:40 PM

Why would it matter if they were married or not if the dude was beating her? It doesn't make it any less of a crime if they are actually married, common law married, or just dating. :wtf

Oh, Gee!!

10-26-2005, 04:41 PM

SWC Bonfire

10-26-2005, 04:42 PM

Why would it matter if they were married or not if the dude was beating her? It doesn't make it any less of a crime if they are actually married, common law married, or just dating.

The Rule of Thumb only applies to your wife, I believe. :lol

Yonivore

10-26-2005, 04:44 PM

Why would it matter if they were married or not if the dude was beating her? It doesn't make it any less of a crime if they are actually married, common law married, or just dating. :wtf
You're right, of course. It shouldn't make a difference. However, there's a big difference between the adjudication of an assault case and a domestic violence case.

SWC Bonfire

10-26-2005, 04:46 PM

I'll go on the record stating that I have no problem with them doing away with common law marriages.

SpursWoman

10-26-2005, 04:54 PM

Why? If anything it makes things more confusing to the people who are actually in one. :lol

SWC Bonfire

10-26-2005, 04:57 PM

(In my opinion) marriage should be an overt act before society.

Oh, Gee!!

10-26-2005, 04:59 PM

I'll go on the record stating that I have no problem with them doing away with common law marriages.

I feel like Jerry Maguire: "Who's coming with me?"

Don't worry! I'm not going to do what you think I'm going to do, which is FLIP OUT!

SpursWoman

10-26-2005, 05:01 PM

:lol

Well, you aren't taking my fish. They're still alive after almost a whole year. :wow :wow

spurster

10-26-2005, 05:02 PM

(In my opinion) marriage should be an overt act before society.
I would prefer privacy, but to each his own.

conqueso

10-26-2005, 05:02 PM

nope. They have to have an agreement (preferably in writing) to be married as well. Holding themselves out, or representing themselves, as married is but one factor.

Actually, Oh, Gee, that's not true.

Common law marriage (kind of a misnomer, since it's been codified):

Texas Family Code s. 2.401 Proof of Informal Marriage
(a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:
(1) a declaration of their marriage has been signed as provided by this subchapter; or
(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

But the Texas Supreme Court in Russell v. Russell, 865 S.W.2d 929, 933-33 (Tex. 1993) stated that a common law marriage can be proved by circumstantial evidence and "direct evidence of an agreement to be married is not required; evidence of cohabitation and representations that the couple is married may constitute circumstantial evidence of an agreement to be married, but the circumstances of each case must be determined based upon its own facts."

In that case, a man and a woman had not made any kind of formal agreement, either written or verbal, to be married, but had told others that they were married and treated their finances as if they were married. The Court found that a "common law" marriage did exist, even without direct evidence of an agreement to be married.

The Russell doctrine has been approved of and cited several times since 1993, as recently as Lewis v. Anderson, decided in August.

At the very least, I can understand why this issue is so confusing and why we need to get to a point where everyone knows what's up, if we're to have it at all.

Oh, Gee!!

10-26-2005, 05:07 PM

SWC Bonfire

10-26-2005, 05:10 PM

I have less of a problem if they sign a contract or make a formal declaration before witnesses (and sign license/contract). Marriage is a contract after all, it should be formalized. (Prenumptual agreement, anyone?)

It shouldn't be that you wake up one morning and you're getting "divorced" because your "wife" claims to be married.

Oh, Gee!!

10-26-2005, 05:12 PM

Texas Family Code s. 2.401 Proof of Informal Marriage
(a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:
(1) a declaration of their marriage has been signed as provided by this subchapter; or
(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

How is this not "an agreement" to be married? Also, according to (2) the agreement needs to be followed by cohabitation in this state and representation to others.

And I didn't say that agreement had to be in writing, but that it is preferable. If there is no writing, the agreement can be proved through circumstantial evidence.

but the circumstances of each case must be determined based upon its own facts."

obviously a signed agreement cuts right through the burden of proving an oral agreement.

conqueso

10-26-2005, 05:15 PM

(1) a declaration of their marriage has been signed as provided by this subchapter

2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

how is this not "an agreement" to be married?

I guess you didn't read the rest of that post.

That statute has been interpreted by the Supreme Court in a way inconsistent with your original statement. By saying that indirect circumstantial evidence of an agreement to be married (i.e. holding yourselves out to be married) is good enough to establish the common law marriage, that criterion is obviated. In other words, saying that evidence of one factor suffices as evidence to fulfill two factors renders the second factor moot. So, when you say "holding themselves out, or representing themselves, as married is but one factor," that's not always true. As you can see from that case and its progeny, sometimes that factor is the only one that is meaningful.

Oh, Gee!!

10-26-2005, 05:25 PM

I guess you didn't read the rest of that post.

That statute has been interpreted by the Supreme Court in a way inconsistent with your original statement. By saying that indirect circumstantial evidence of an agreement to be married (i.e. holding yourselves out to be married) is good enough to establish the common law marriage, that criterion is obviated. In other words, saying that evidence of one factor suffices as evidence to fulfill two factors renders the second factor moot. So, when you say "holding themselves out, or representing themselves, as married is but one factor," that's not always true. As you can see from that case and its progeny, sometimes that factor is the only one that is meaningful.

Actually, without the agreement there is no marriage. The Supreme Court did not do away with this requirement, rather they made it a little easier to prove a non-written agreement b/c most people don't think to memorialize their living arrangements in writing. The other party can still rebut the evidence of the supposed agreement.

conqueso

10-26-2005, 05:45 PM

Actually, without the agreement there is no marriage. The Supreme Court did not do away with this requirement, rather they made it a little easier to prove a non-written agreement b/c most people don't think to memorialize their living arrangements in writing. The other party can still rebut the evidence of the supposed agreement.

Not to belabor this point, which is of course extremely minor, but the Supreme Court did do away with the agreement factor in certain situations...imagine you live with a girl and you tell everyone that you're married. Let's say that you also mingle some assets. Furthermore, you and that girl have never agreed in any way to be married. According to the Russell doctrine, a court should find that you have a common law marriage.

Maybe the best way to explain this is to say that those factors, taken together, are sufficient conditions and not necessary ones. So a written agreement by itself can do it, or cohabitiation and public representation by themselves can do it. What's wrong is to say that all three of those factors must be there in order to prove up a common law marriage. Trust me on this one, I've proved up common law marriages without any kind of agreement before, and haven't been overturned on appeal (at least not yet!)

Oh, Gee!!

10-26-2005, 05:49 PM

Not to belabor this point, which is of course extremely minor, but the Supreme Court did do away with the agreement factor in certain situations...imagine you live with a girl and you tell everyone that you're married. Let's say that you also mingle some assets. Furthermore, you and that girl have never agreed in any way to be married. According to the Russell doctrine, a court should find that you have a common law marriage.

Maybe the best way to explain this is to say that those factors, taken together, are sufficient conditions and not necessary ones. So a written agreement by itself can do it, or cohabitiation and public representation by themselves can do it. What's wrong is to say that all three of those factors must be there in order to prove up a common law marriage. Trust me on this one, I've proved up common law marriages without any kind of agreement before, and haven't been overturned on appeal (at least not yet!)

There are three factors according to the family code: agreement, cohabitation, and representation. All three must be proved by the party claiming that there was a marriage (i.e. the person who wants half of the community assets). The Supreme Court's decision did not change the law, it only made proving one of these factors (the agreement) easier than it should be, imho.

conqueso

10-26-2005, 05:54 PM

There are three factors according to the family code: agreement, cohabitation, and representation. All three must be proved by the party claiming that there was a marriage (i.e. the person who wants half of the community assets). The Supreme Court's decision did not change the law, it only made proving one of these factors (the agreement) easier than it should be, imho.

I guess the courts here in Bexar county would disagree with you, but maybe the Texas Legislature wouldn't. I think that if two people are willing to act as if they're married and tell everyone that they're married, the need for an explicit agreement between them is kind of irrelevant. They are functionally married when they do those things, and I'm not sure it's possible to act as if you're married and tell people you're married and somehow not have agreed to be married.

Anyway, why do you think it's so important for the standard to be more stringent for common law marriages?

Oh, Gee!!

10-26-2005, 06:02 PM

greywheel

10-27-2005, 10:11 AM

I guess the courts here in Bexar county would disagree with you, but maybe the Texas Legislature wouldn't. I think that if two people are willing to act as if they're married and tell everyone that they're married, the need for an explicit agreement between them is kind of irrelevant. They are functionally married when they do those things, and I'm not sure it's possible to act as if you're married and tell people you're married and somehow not have agreed to be married.

Anyway, why do you think it's so important for the standard to be more stringent for common law marriages?

Geez, I am starting to understand why people are worried about the wording on proposition 2. It seems to me that the argument going here is wether an implicit agreement is an agreement.

According to the link I provided above. It is.

Q: He has introduced me as his wife, although I have not introduced him as my husband. We have not taken any other actions that would hold us out to the world as being married. Are we in a common law marriage?
A: It depends on whether you tried to correct the impression that you were married. If you did, you may have some argument that you had not agreed to be married. But if you knew that you were being introduced in this fashion and did nothing to correct the impression that you were married, you may well be in a common law marriage.