November 08, 2005

Vote Against Proposition 2

This is for my Texas readers. I'm post-dating it to stay at the top of my blog until after Tuesday's elections. Texans are heading to the polls on Tuesday, November 8, to vote on nine proposed amendments to the Texas Constitution.

Proposition 2 would amend the Texas Constitution with the following text (from HJR 6):

BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
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.
SECTION 2. This state recognizes that through the designation of guardians, the appointment of agents, and the use of private contracts, persons may adequately and properly appoint guardians and arrange rights relating to hospital visitation, property, and the entitlement to proceeds of life insurance policies without the existence of any legal status identical or similar to marriage.
SECTION 3. This proposed constitutional amendment shall be submitted to the voters at an election to be held November 8, 2005. The ballot shall be printed to permit voting for or against the proposition: "The constitutional amendment providing that marriage in this state consists only of the union of one man and one woman and prohibiting this state or a political subdivision of this state from creating or recognizing any legal status identical or similar to marriage."

Before we get into the actual black-letter meaning of the amendment, let's look at the intent. This is designed to keep any sort of gay marriage or similar legal arrangement such as civil unions, from being accorded any legal status in Texas.

While I hope that gays may someday legally marry, adopt and otherwise enjoy the equal protection of the laws and the same privileges and immunities as heterosexual couples, there are two very good reasons for all Texans -- including those opposed to gay marriage -- to vote AGAINST this amendment:

First, Texas already forbids same-sex marriages by statute.

Second, the plain text of the amendment lends itself to a construction outlawing all marriage. Read clause (a) closely. It defines marriage as only a "union" between a man and a woman. What kind of union? Physical? Are straight couples only married when in fact they are engaged in sexual congress? OK, maybe that's a silly argument. But look at clause (b). Neither Texas nor any political subdivision of Texas may "create or recognize any legal status identical or similar to marriage."

What does "identical" mean? Exactly the same as? Isn't the only thing identical to marriage, marriage itself?

Could Texans really be about to abolish the legal institution of marriage altogether? I know some libertarians -- not me -- who would be delighted at that prospect.

Certainly section 2 of the House joint resolution could be used by a creative lawyer to argue that the Legislature knew that it was incumbent on couples (of whatever kind) to get their affairs in order as to guardianship, survivorship, etc., as they were about to obliterate all the legal privileges appurtenant to marriage.

I know the right wingers will say this isn't what they meant. But they should have been more careful drafting the amendment's text.

One very real potential casualty of this amendment could be common-law marriages. Like most Western states, Texas has a fairly short statute of limitations for the formation of a common-law marriage. But since common-law marriages are not formalized by a license, I would read this amendment to forbid any family or probate courts from recognizing the entitlement of the common law spouse to their share of the community property.

This is just a needless, largely symbolic, and ugly mess. One driven by bigotry and closed-mindedness. I hope (without much optimism) that my fellow citizens will keep this abomination from becoming part of the Texas constitution.

If you are registered to vote, PLEASE VOTE. And vote AGAINST Proposition 2.

Update: Be sure to check out the discussion in my comments. Here's my explanation of the legal futility of the proposed amendment to prevent "activist judges" from imposing gay marriage:

Third, this is all a red herring, because the status quo under both Texas and federal law is that gay marriage is and remains illegal and need not be given full faith and credit, even if permitted in other states. This is the case NOW. Prop. 2 will do NOTHING to change this, and in fact may undermine long-customary common law marriages (to the detriment of the abandoned common--law-wife, typically). You may call that FUD, but have you read the plain text of the amendment? It is sloppy and unforgivably vague. Which means everything will end up in court, which is what the amendment is supposed to prevent.

Fourth, speaking of court... the same federal constitutional challenge that would lead to a change in the status quo (see 3) would also lead to an invalidation of the proposed marriage amendment. The supremacy clause of the US Constitution would bind Texas, if activists manage to win an extension of marriage rights as a basic liberty under the 9th, 10th, and 14th amendments. Think of all the dead-letter miscegenation laws that were on the books in the South after Loving v. Virginia.

I think Virginia Postrel sums it up much more elegantly:

Since Texas already defines marriage by statute as the union of one man and one woman, Prop 2 is nothing more than a gratuitous attempt to build Gov. Rick Perry's social-conservative voting base by attacking gays. Supporters say an amendment is necessary to control "activist judges." But the only judges the amendment would bind are Texas state judges. Texas state judges, including the state's Supreme Court, are elected by Texas voters. Texas state judges are quite conservative. They are, to put it mildly, highly unlikely to find a right to same-sex marriage in the state constitution.

(Voting guide for all nine amendments beyond the jump):
more...

Posted by: JohnL at 10:00 PM | Comments (18) | Add Comment
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