Propositon 2

(HJR 6 – Sponsors: Chisum et al, and Staples)

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.

No.

From LWV:

ARGUMENTS FOR
• A constitutional amendment would prevent court challenges to the current law against same sex marriage or civil union. Eighteen (18) other states have constitutional amendments with similar definitions of marriage, and others are working on them.
• The proposed amendment would not prohibit same sex couples from continuing their lifestyles.
ARGUMENTS AGAINST
• Changing the constitution to define marriage and ban same-sex marriages is not necessary to set legal principals, as there is a statute already prohibiting same-sex marriages.
• Texas should provide equal protection to all its citizens and should not discriminate against a group of citizens in the state constitution.

From TLC:

Arguments For:
1. Adoption of the proposed amendment would prevent potential legal challenges to Texas’ marriage statutes. The equal protection clause and other provisions of the Texas Constitution are similar to those in other state constitutions and could be interpreted by courts to permit same-sex marriage or to require the recognition of a legal status identical or similar to marriage. Citizens of Texas, rather than the courts, should defi ne marriage in this state. Seventeen states have added a defi nition of traditional marriage to their constitutions, all approved by voters by substantial margins, and President Bush has endorsed a similar amendment to the U.S. Constitution.

2. The union of a man and a woman in the long-standing institution of traditional marriage promotes the welfare of children and the stability of society. The sanctity of marriage is fundamental to the strength of Texas families, and the state should ensure that the institution of traditional marriage cannot be undermined by a future court decision or statute of the Texas Legislature.

3. The proposed amendment would not discriminate against any person. Approval of the amendment by the voters would not prevent same-sex couples from pursuing their lifestyles. Approval of the amendment would only ensure that the union of same-sex couples is not sanctioned by the state.

Arguments Against:
1. Amending the Texas Constitution is unnecessary and inappropriate. A constitutional prohibition is unnecessary because Texas law already prohibits same-sex marriages and prohibits the recognition by the state or its political subdivisions of a same-sex marriage, a civil union, or a right or claim asserted as a result of a same-sex marriage or a civil union. A constitutional prohibition is inappropriate because it limits future state legislators’ fl exibility to promote the health and safety of families in whatever form those families may take. Evidence of society’s changing notion of what constitutes a family is seen in the decision of the United States Supreme Court less than 40 years ago to invalidate laws banning interracial marriage and in the greater frequency in recent years of divorce, remarriage, and single parenthood.

2. The language in the proposed amendment prohibiting the creation or recognition of “any legal status identical or similar to marriage” is vague and goes too far. While the state’s DOMA statute narrowly defi nes a “civil union,” the proposed amendment contains broader language that has the potential for being interpreted to nullify common law marriages or legal agreements, including powers of attorney and living wills, between unmarried persons.

3. If the purpose of the proposed amendment is to defend the sanctity of marriage, that purpose would be better served by state laws addressing the high incidences of divorce, adultery, and family violence that occur within traditional marriage between a man and a woman and that are more damaging to the institution of marriage, the welfare of children, and the stability of society, than same-sex marriages.

From HRO:

Supporters say
The citizens of Texas, not the courts, should decide what constitutes marriage in this state. A constitutional amendment would prevent a possible challenge to the state’s marriage statutes. Even though Texas courts may be unlikely to interpret the state Constitution to allow same-sex marriage today, it could happen in the future. Texas’ equal protection clause is not so different from those of other states that it could not be interpreted to permit same-sex marriage. Preserving marriage for unions between a man and a woman should be defined beyond doubt, and not left to the whims of future judges.

Since the recent state court decisions involving same- sex marriage or civil unions, voters in 18 states have responded by approving amendments to their constitutions to protect the traditional definition of marriage. Proposition 2 would give Texas voters a similar opportunity. A proposed amendment to the U.S. Constitution that would prohibit same-sex marriage and similar arrangements may take years to be ratified by the states if approved by Congress, so the state Constitution should be changed now to ensure that the traditional concept of marriage is protected in Texas.

Ensuring that Texas cannot be forced to recognize same- sex marriages or unions is important for several reasons. The state has an interest in giving the solidity that accompanies legal recognition only to relationships that could result in procreation. Heterosexual marriage is the basis for a healthy and productive society, and any erosion of this foundation would jeopardize the future of Texas’ children and families. It also is important to define marriage precisely in the Constitution in order to establish the parameters of who may form a union. Otherwise, the right to marry eventually could be expanded beyond two adult persons of the opposite sex to include a wide variety of other nontraditional unions, possibly including even polygamy or partnerships among close relatives.

The proposed amendment would not discriminate against individuals based on their sexual preference but merely would permit the voters of Texas to decide the scope of marriage in the state. Same-sex couples would not be prohibited from pursuing their lifestyle if this amendment were approved by voters – it simply would not be sanctioned by the state. Also, a constitutional provision is not written in stone, and future lawmakers and voters could amend the provision if values and mores change significantly in the future.

This constitutional provision also would protect the definition of marriage by ensuring that civil unions were not permitted in the future. Civil unions are a way for same- sex couples to circumvent laws protecting marriage by creating a legal arrangement that is substantially the same as marriage in all but the name.

The prohibition against recognition of any legal status that is identical or similar to marriage would not infringe on the ability of individuals to enter into contracts or change the way common law marriage is treated today. The amendment would not apply to contracts because they would not be considered the same or similar to marriage, and common- law marriage would not be affected because it is viewed as marriage today.

The joint resolution proposing the constitutional amendment contains a statement of legislative intent plainly stating that the state of Texas recognizes the use of contracts, designation of guardians, and appointment of agents for rights concerning hospital visitation, property, and entitlement to life insurance proceeds in the absence of a legal status that is identical or similar to marriage. Proposition 2 would not affect these rights and arrangements between individuals.

Opponents say
Asking Texas voters to approve an unnecessary and needlessly redundant constitutional prohibition against what already is prohibited by law is a divisive distraction from real issues that the state should be addressing, such as school finance and children’s health insurance. Amending the Texas Constitution to ban same-sex marriage is entirely unnecessary because, in practical terms, no case would get far enough in state court to challenge current law that prohibits it. Texas courts are considered so unlikely to be sympathetic to arguments favoring same-sex marriage that no one has even filed a suit to start the process. Other challenges have been a part of a national campaign with national funding and resources to seek the recognition of same-sex marriage in certain states considered more sympathetic to such unions. Texas is not one of them, so the state should not change its Constitution unnecessarily.

Defining marriage in the Texas Constitution would have no positive effect on Texas’ children or families. Crime, poverty, poor education, drug abuse, and many other issues are a real and grave threat to the foundation of Texas’ society, but attempts to link social problems to same-sex marriage have no basis in reality. Rather than more narrowly defining marriage, the state should pursue policies that support families of all types so that all Texas children have the opportunity to grow up in a stable household.

The proposed amendment would take the issue of same- sex marriage out of the hands of citizens even though the institution of marriage has proven dynamic. It is noteworthy that anti-miscegenation laws banning interracial marriage were struck down less than 40 years ago. Although same- sex marriage is not contemplated in Texas today, future generations may see value in creating alternatives to traditional marriage. Already, many Texas families exist that look different from the traditional model, either because of divorce and remarriage, single parenthood, or other circumstances. A constitutional amendment would limit the ability of future lawmakers to respond to constituents’ changing needs.

Fears that recognition of a right by two consenting adults to seek legal sanction for their personal commitment to one another somehow would lead to broader attempts to undermine the criminal prohibitions against polygamy, incest, or even bestiality are specious and totally unfounded. For example, the past expansion of rights to new groups of individuals, such as the right to vote for women and minorities, has not led to overly broad application to additional groups such as children and non-citizens.

As the state’s fundamental law, the Texas Constitution is meant to protect the rights of the people, not take them away. Proposition 2 essentially would determine that the state’s equal protection clause would not apply to one group of people. Texas should not discriminate against a group of citizens in the state constitution. Nowhere else in the constitution is one group of people singled out to be denied rights.

Other opponents say
While a constitutional amendment banning same-sex marriage may reflect current state law and tradition, a ban on all types of civil unions or any legal status similar to marriage would go too far. Other states have reacted to the prospect of same-sex marriage by banning it in their state constitutions without also banning civil unions or restricting the rights of individuals to form domestic partnerships. Adopting such a sweeping ban would needlessly inhibit the freedom of unmarried couples to seek legal recognition of their relationship short of marriage.

This proposed amendment could threaten some contracts and other arrangements between individuals, such as common law marriage and certain domestic partner arrangements, for opposite-sex as well as same-sex couples. Although not all contracts are similar to marriage, some relating to medical decision-making authority and other family issues beyond the narrow exceptions identified in the legislative intent language included in the joint resolution could be construed as granting privileges similar to those enjoyed by married people.

The legislative intent language likely would have no effect on judicial interpretation of the proposed amendment because it would not be part of the Constitution nor would it be in any statute. Even if today’s legislators did not intend for those rights to be changed, the very plain language that this proposition would add to the Constitution would grant the courts broad authority to invalidate any agreement considered similar to marriage. Common law marriage also could be threatened as it is not explicitly excluded from the prohibition this amendment would add to the Constitution.

I’m a ‘conservative’ of the old school, or, perhaps more properly, a classical liberal. I’m with whoever said “that government is best which governs least” [though widely attributed to Thomas Jefferson, this is not found in any of his writings (scroll down)]. This proposition is government meddling where it has no business meddling, and is redundant to boot. Those folks in Austin only meet every other year…don’t they have more important things to worry about? Why are we wasting time on this?