The Texas Tribune reports on yet another piece of flagrantly unconstitutional legislation that has been passed by our Legislature. However, this bill, HB869, passed both houses of the Legislature unanimously and was signed by the Governor completely under the radar.
The bill prohibits what is known as a proxy marriage, where one individual unable to make it to the ceremony signs and a files an affidavit wherein he or she designates a stand-in. These are typically used for two purposes: military and prison weddings, respectively. The new law, however, exempts military personnel. This means HB 869 specifically targets prison weddings.
Ostensibly, this bill is about preventing fraud. Unlike alleged voter fraud, there are some actually documented cases of this happening. As the Tribune reports:
“Scott Riling, chief of staff for the bill’s author, state Rep. Trent Ashby, R-Lufkin, cited the case of a Houston County woman who re-married an incarcerated ex-husband by proxy without his knowledge to rake in insurance benefits after he died. The inmate’s daughter discovered the re-marriage after her father’s death and sued; the woman is now in prison for the fraud, a third-degree felony.”
This would be understandable, except Texas has an extremely strict policy against weddings in jails & prisons. Further, when the Tribune contacted the Texas Department of Criminal Justice, they remained stuck to their no-weddings policy. Thus, a huge hole in the law has emerged in which prenuptial inmates have been pushed into by the government.
This all has to do with the Constitution (& Justice O’Connor) for the following reasons. In 1987, the Missouri Department of Corrections issued burdensome regulations upon the rights of prisoners. The Supreme Court specifically struck all those regulations pertaining to marriage.
Since 1967 (in Loving v. Virginia), the Court has held that marriage is among those rights protected by the constitution. In the Missouri case, Turner v. Safley, the court unanimously threw out a regulation requiring all Missouri inmates to secure the permission of the warden before marrying. Writing for the majority, Justice O’Connor wrote:
“Although prison officials may regulate the time and circumstances under which a marriage takes place, and may require prior approval by the warden, the almost complete ban on marriages here is not, on the record, reasonably related to legitimate penological objectives.”
HB 869, assuming no change in policy occurs at the TDCJ, constitutes a complete ban on marriages which, on its face, is unconstitutional. Like the omnibus anti-abortion bill, this act will be tied up in Federal Court where the foreseeable future until it is ultimately thrown out. I only wish that JUST ONE Democrat (or Republican, for that matter) could have stood up against it when it was debated.