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):

Prop. 1 - AGAINST (don't give the state the power to create another agency)
Prop. 2 - AGAINST (see above)
Prop. 3 - AGAINST (make it harder for the state to spend money)
Prop. 4 - FOR (make it easier to keep bail-jumpers in jail when they're caught again)
Prop. 5 - FOR (allow the legislature to grant more freedom for commercial lenders to charge interest exmpt from usury limits)
Prop. 6 - FOR (technical change to expand State Judicial Commission by 2 members)
Prop. 7 - FOR (gives certain borrowers more freedom)
Prop. 8 - FOR (state relinquishing title to certain public lands)
Prop. 9 - FOR (technical amendment to stagger 6 year terms of certain board members)

Posted by JohnL at November 8, 2005 10:00 PM | TrackBack
Comments

Sorry -- I'm for the amendment myself. Beyound the religious argument (which for me is very strong) there is also the "what is best for our society?" question. I believe that the side effects would be very bad for our society as a whole and for our children in particular.

While we disagree on this, I hope we can still be friends. One should be able to disagree without being disagreeable, eh?

Robin Juhl

Posted by: Ranten N. Raven at November 6, 2005 10:43 PM

"It's for the children" is always a useful, empty, statement. Even if banning same sex marriage would somehow help "the children," the wording on this amendment could do awful things to marriage in Texas.

Posted by: Owlish at November 7, 2005 02:08 AM

I make a simple statement of my belief, and you call it "a useful, empty statement?" That is not exactly nice.

The line of legal definition must be drawn somewhere. Consider abortion: If you read Roe v. Wade, you'll see that the court actually said that the state had a legitimate interest in regulating abortions in the final trimester. But the line was not clearly drawn. Now, it's considered a woman's right to have her baby killed when partially born. All from same ruling.

Once marriage open up, we will soon have Heinlein-style multiple partner marriages. There would soon be every possible premutation. While that's fun to read about, I don't think it good for society and for children. Once it's acknowleged as a "good thing" via legal recognition, then the schools must teaach that "it's a good thing." Even for those styles of marriage that might prove disasterous, there is no opportunity for schools to descriminate against them. All are equal before the law, just as schools must now teach that all abortions are good.

That's how I see it, in a nutshell. You can certainly disagree, oh Owlish one. But I hope you at least recognize that it's my honest belief, not some convenient "useful, empty statement."

Robin Juhl

Posted by: Ranten N. Raven at November 7, 2005 06:07 AM

There have been various public policies, that have been supported by people as "for the children," for instance the War on Drugs, that had unintended consequences. Such as, it's easier for a teenager to get access to marijuana than to alcohol. So, yes, saying "It's for the children" to me is trying to get people to vote for your side, without making the rational argument for why I should be on your side.

So you don't like the idea of same sex marriage, and think it will lead to other arrangements being called marriage, which will be bad. Ok, that's an argument. Seems like a weak one to me, but ok.

The point is, Proposition 2 won't just ban gay marriage, and gay civil unions. The wording is such that it seems to prevent the state from recognizing any marriage. Which is, I suspect, an unintended consequence you would not want.

Posted by: owlish at November 7, 2005 08:27 AM

[Deleted at request of commenter].

Posted by: Mallorie Royo at November 7, 2005 05:29 PM

Owlish: I didn't set out to change your mind to my side. I simply stated that I was on the other side, what motivated me, and expressed the hope we could all still be friends. Also, I don't believe the text of the amendment threatens marriages under existing law. That argument reminds me of Microsoft's approach to fighting for market share: FUD. Create "Fear, Uncertainty, Doubt" in the minds of managers when they think of other products. I can't change your mind; you can't change mine. But I hope we can keep from hurling "Moonbat!" and "Wingnut!" at each other.

Mallorie: Only God can judge us, true. As a Christian, I believe that giving in to homosexual urges is on a par with giving in to adulterous urges. Both old & new Testaments seem to regard them in the same light. But we are all sinners. "Sinful feelings?" Get them all the time. Lust and greed are sins I fight daily, hourly, minute-by-minute, even. It is not my place to judge, for I have legions of my own sins. You ask how this could harm me and mine, though....

You point out that you do not flaunt your sexuality, and in fact mute your behavior near families because it might make them uncomfortable. This is gracious behavior, to be concerned with the feelings of others. But, if the state recognizes your union as a "good thing" that is on a par ith the marriage of that mom & dad, why should you? Your marriage would be as good as theirs. They can kiss, hold hands, etc. You may continue to mute your behavior, others would not. "We're here; we're queer; get used to it!" is an old chant now.

You don't seek adoption? Why not, once married? Your marriage would be as good as any other's. The two gay guys across town? Why can the state descriminate against them? There would be no legal reason to do so.

What would schools be required to teach? That hetrosexual monogamy is society's prefered norm, the standard to which we should aspire? No, they must treat all marriages equally. Gay activists who don't respect families' feelings would make sure of that. Sex education classes would get even more..."interesting."

If any two people can get married, why not any three or any five or any twelve? (That's why I mentioned Heinlein: his stories included families that had multiple husbands and multiple wives.) What legal reason is there to stop such marriages? None, if any two adults have a right to marry, so do any three, etc. The Mormans may soon get polygamy legalized again.

I don't seek to convince you, just to inform you of my belief: I don't believe that direction is good for society. Yes, I know: Owlish and our kind host disagree. After tomorrow, we an all go back to being allies on many other questions.

Posted by: Ranten N. Raven at November 7, 2005 09:20 PM

First, I want to thank everyone for remaining civil.

Second, I know Owlish personally, since long before I knew he was gay. Everything I knew about him as a person before he came out would have led me to believe that he would make as good a husband and father as I am today. So why can't he? He didn't decide to "become" gay. It's who he is.

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.

So, best I can tell, this amendment is motivated primarily by ignorance, but also significantly by a kind of ugly and cumulative intolerance.

Posted by: JohnL at November 7, 2005 09:50 PM

Ranten, of course you're as welcome as anyone to read and share your opinions here. Your opinions are probably the same as those of my boss, my coworkers, my parents, my pastor, and most of my fellow citizens here in Plano. The majority is not always and forever right, however.

I think your mentions of Heinlein are very interesting, as that is the libertarian outcome of removing the state from the marriage equation. I'm not convinced it would be worse than the status quo. I'm not convinced it would be better either, though I am inclined that way. My only hesitation is based on child custody/support issues and marital property issues in non-traditional arrangements.

But those are and will remain academic questions for quite some time.

Thanks for contributing to the discussion.

Posted by: JohnL at November 7, 2005 10:00 PM

Raven: Based on your assumption that non-traditional marriage isn't good for children, aren't there other existing conditions affecting far more children that should be outlawed before worrying about gays and polygamists? Divorce and single-parenthood are, if not yet openly encouraged, certainly very common and it wouldn't surprise me if children of single parents are being told their smaller families are just as good as the traditional 2-parent version.

Has the use of legislation to protect children (or others) from certain beliefs ever worked in the past? Isn't Libertarianism about being free to make your own choices in life and allowing others to make their own? Are you really saying you don't think people in "non-traditional" relationships should not be allowed to enjoy the same legal benefits and protections you do solely because you don't want your children to think such relationships are acceptable?

Posted by: Skwigul at November 7, 2005 10:32 PM

I know Owlish personally, since long before I knew he was gay.

And before I knew I was gay.

The majority is not always and forever right, however.

My step-grandfather was offended by mixed race marriages, which to me seemed just stupid. In the past, that probably was a majority opinion.

I know a gay couple who have been together for more than 10 years. It seems to me that Hollywood celebrities having fly-by-night marriages do much more to undermine marriage than the possibility of my friends getting married.

Posted by: Owlish at November 7, 2005 10:36 PM

R. Juhl has every right to be concerned about the state of marriage and society. Unfortunately that concern doesn't justify voting yes on Prop 2 (which is badly worded and unnecesaary in Texas anyway as explained above). R. Juhl's concern could be better focused on strengethening straight "marriage" and parental responsibility laws... but somehow I doubt R. Juhl feels nearly as motivated to vote-in government oversight and critical assessment of his own personal/familial relationship. Sure, he might say, straight people are the ones responsible for the sorry state of marriage as it stands now - but it's so much easier to vote against the gays. You can't expect him to turn a critical eye to the way his straight family and friends treat marriage when there are gays around who already think it's okay to hold hands in public.

But he still, of course, wants to remain friends - as long as you aren't a gay friend who thinks kissing your partner of 20 years goodbye at the airport is okay when he and his family are within eyeshot. With friends like that, who needs enemies?

Posted by: kipp at November 8, 2005 01:26 AM

John L.: Thanks for the clear thinking, the forum for discussion, and he kind words. You are gracious host. Discussions where we all agree are boring. When we can disagree in a civil manner, we can seek uderstanding, at least.

Owlish: Thanks for an interesting and civil discussion.

Kipp: Thanks for the gratuitous insults and for ascribing your fears to my thoughts and attitudes. Unlike John L., who knows Owlish, you don't know me.

I grew up knowing Jerry and Bori. Jerry was my mom's best friend from HS days. They were at all my family events. They lived together and owned a business together. When I ws older I heard laughing references to how wild their parties were. Esspecially mentioned was the time Bori fell asleep drunk right under the window AC unit (early 1960s) and got pneumonia. Bori commited suicide around 19070, and it brought Jerry & my mother even closer.

I didn't know they were gay until I was nearing graduation from HS. And Jack? My favorite uncle? He's gay, too? And Mr. Harrington, my 7-9th grade music teacher? Amazing!

Lord, Jerry was fun at parties. Loud? A Joke a minute? WOW! When WakkaWakka was five, Jerry mooned him. My brother told me: "He did the same thing to you when you were that age."

Jerry went on a sex-vacation trip to Thailand about five years ago. The AIDS he contracted there killed him about three years ago.

My mother was DEVASTATED. I miss Jerry, too.

Don't try to tell me how I feel, bucko. I'd use stronger language, but his is John L's home, not mine. Now, I need to get off to work.

Posted by: Ranten N. Raven at November 8, 2005 06:00 AM

RnR-

What a touching story about the all the swell gay people in your life. I'm sure George Wallace has lots of black friends, too.

Did you ever stop to think that just maybe Bori wouldn't have committed suicide - and Jerry might not have needed to go on a Thai sex vacation and gets AIDs - if perhaps society accepted gay people or gave some aknowledgement to long-term commitment between gay people.

I don't know you RnR - and these issues are pretty major in my life so please forgive some of my 'tude. Despite your fond memories, most gay men don't get AIDS on Thai sex vacations. And many of them aren't funny, hyperannuated teenagers - they're just regular mature adults trying to lead happy, responsible lives and some of them want to raise children, too. These people aspire to the very standard of marriage that straight people have let slip over the last 30 years. Voting yes on Prop 2 does next to nothing to protect straight marriage and does everything to prevent committed gay couples from receiving any aknowledgement that society values their relationship and committment.

You are complicit in the oppression that can make life very sad and very difficult for gay people. I doubt you sneer at them in public or ban them from your birthday parties. But you are sneering at them in the voting booth by voting for Prop 2. I'm sorry if it seems unfriendly to point that out...

Posted by: kipp at November 8, 2005 11:55 AM

Not to mention, you've seen 2 people die, and your major concern is how it will affect the children if we legalize poligamy?

Or is it that if Bori and Jerry had just accepted Jesus into their lives, and gone Ex-Gay, none of that would have happened?

Posted by: owlish at November 8, 2005 12:10 PM

I'm a hater and a religious bigot, or so you say. Sorry for taking my faith seriously. I try to open up and I get slammed. Not the best way to convince me of your arguments.

This vote is over. I will not engage here again.

John L: If you ever head San Antonio's way, let me know. I'd like to buy you a drink.

Finis.

Posted by: Ranten N. Raven at November 9, 2005 05:56 AM

Hmm. JohnL, I'm sorry if I was involved in losing you a reader.

Posted by: Owlish at November 9, 2005 10:09 AM

I wonder if those in favor of "traditional marriage" realize that at one time it was against the law to marry someone who had epilepsy. And at one time inter-racial marriage was illegal as well.

It's just a matter of time folks. Just as in Canada and parts of Europe, gay marriage will be legal here someday. It's just going to take us backwards homophobic Americans a little while longer to get there.

Posted by: Texican at November 9, 2005 02:57 PM

I really have to chime in here, on behalf of the minority who are Intersexed.

The men who are 46xx females genetically, but with Adrenal Hyperplasia. The women who are 46xy males genetically, but have Complete Androgen Insensitivity. Those with Kleinfelters syndrome, 47xxy, who look like normal males, unless you know what to look for. Those with mosaicism, where parts of the body are 46xx, others 46xy, and possibly other still 47xxy. These are the common conditions, 1 in a few thousand, get to 1 in 100,000 and some really weird stuff can happen.

Many have grown up believing themselves "normal". Many have gotten married. Some (mosaics and Kleinfelters) have even had kids. Some go to their graves never knowing that they were different.

What about the 46xy girls with 5-alpha-reductase deficiency, who find themselves turning into men at puberty?

What about those whose mothers were given DiEthylStoboestrol during pregnancy, so their unborn son ended up with a female-pattern brain? Or those where it just happened due to a natural hormonal glitch? Or where a daughter ended up with a male-pattern brain, something about as common?

This has nothing to do with sexual preference : many such transsexuals didn't know their condition was a congenital anomaly, that was only found out in 1999. The Female transsexuals know they're women, despite being in a male body, it doesn't fit and is a constant source of misery. The Male transsexuals know they are men, despite the curves, the ones they hate with a passion.

How would you guys like it if you'd been born in a body that was a petite size 8, 34C cup, "daddy's little princess", and hating every second of it since age 5 or so. Because that's when you would know - this stuff has nothing to do with sex, it's gender. How would you like it if you knew you could never be a father, if you wanted kids you would have to have sexual relations with another man?

Now you know what it's like for about 1 in 2000 people.

So in 1970-something, there you are, you just think you're psychologically screwed up, you don't know the reason you feel as you do is because the very brain cells in your head react differently to hormones and neurotransmitters from everyone who looks like you. You don't know that the cell patterns in the BSTc layer under the Hypothalamanus, and other gross brain structures, are those of the opposite sex to your body. You just think you're a bit weird, a bit screwed up in the head. But if you tell anyone, you'll end up getting aversion therapy, ECT (shock treatment), mind-bending drugs... none of which will work, there has never been a single documented case of a "cure", but they'll keep on trying well into the 21st century.

You deal with it. You make the best life you can. If you're lucky, you find a member of the same sex as yourself who is attracted to your opposite-sexed body. If you're very, very lucky, you manage to overcome your natural homophobia, and fall in love with them too. You marry, and have kids. This is especially common with females, they have strong maternal instincts, even if they do have male chromosomes.

But some crack under the strain. Usually about 33 years after puberty. Maybe all do - how would we know? Then the only choice they have is twofold: to either have the hideously embarressing, expensive and protracted cosmetic "sex change" treatment (which has a 97% success rate), or figure out how they're going to die: by their own hand, or, if they have the courage, just letting nature take its course. Stress kills them within months, years at most, years of torment 24/7. Or decades of being a Zombie on huge doses of Happy Pills to keep them breathing.

Parenthetically, there is a third possibility, but incredibly rare, very few cases reported. Sometimes the body starts changing without any treatment. Such people don't get a choice. They change, partially, anyway.

In any case, you end up with two people who are married, usually with children, and of the same somatic sex. 80% of such marriages immediately fail. 20% don't.

"Those who God has joined together, Let No Man put asunder". Even if, through a medical condition, they end up with the same sex.

But it's only a tiny minority of course. Why, not even a thousand in Texas, only a couple of hundred.

Zoe (one of the rare ones who had no choice)

Posted by: Zoe Brain at November 10, 2005 06:03 AM
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