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Texas Votes for State Constitutional Ban on Gay Marriage

November 9, 2005

AUSTIN, Texas _ Texans voted overwhelmingly Tuesday to bolster the state’s ban on same-sex marriage by writing it into the state constitution, rejecting concerns that the broadly worded amendment could go much further than intended.

The measure swept most of the state’s major urban counties, including Dallas and Tarrant. Overall, the amendment, Proposition 2 on the statewide ballot, prevailed by about a 3-to-1 ratio as voters decided nine amendments.

In many rural areas and smaller cities, Proposition 2 carried by runaway margins. An exception was Travis County, where opponents rallied college students against the amendment. In almost all of the rest of the state, though, the vote wasn’t even close. And turnout appeared higher than usual for such an election.

“Texas is a huge conservative state and they’ve spoken on this issue,” said Rep. Warren Chisum, the Pampa Republican who authored the amendment. “They’re very family-oriented, and given the opportunity, they’ll vote conservative. They still have a lot of moral values.”

Opponents, who knew they faced certain defeat, said they had planted the seed for a political movement and predicted that the amendment would be the subject of lawsuits over legal arrangements that gay couples make short of marriage.

“The litigation will begin,” said gay-rights activist Glen Maxey, leader of the effort to defeat the amendment. “There could be some bad outcomes.”

Supporters of the proposal, such as Gov. Rick Perry, said their main goal was to defend marriage as a vital societal institution that should not be changed. They also pitched the amendment as a guarantee that state courts wouldn’t be able to force Texas to recognize gay unions.

“Let there be no doubt that Texans, not liberal activist judges, will decide how best to keep our families and state strong,” said state Republican Party Chairwoman Tina Benkiser. “Campaigns of confusion, lies and deception will go down in blistering defeat.”

Opponents called the amendment overkill. They noted that nobody has challenged the state law banning gay marriage that was enacted in 2003 and predicted that the state’s all-Republican Supreme Court would deny the attempts of anyone who did.

They also said the amendment was designed to get thousands of conservative Christians registered to vote so they can be turned out to support Gov. Rick Perry’s re-election in the March GOP primary. Perry’s political aides acknowledged that as a side benefit but said the primary goal was protecting marriage.

Perry said nothing publicly about the amendment’s passage.

Proposition 2 puts a ban on same-sex marriage in the Texas Constitution and prohibit the state or local governments from creating or recognizing “any legal status identical or similar to marriage.”

In the days before the vote, criticism mounted that the amendment is vaguely worded.

“It’s horribly drafted,” said Houston attorney Warren Cole, chairman of the State Bar of Texas’ family law section.

He said the Legislature’s failure to specify that it was trying to prohibit alternatives to marriage for “unmarried individuals” means that “all marriages would be annulled, technically speaking.” And Cole predicted challenges to gay couples’ arrangements for property and end-of-life medical decisions.

“There’s going to be some major-league issues on this thing, and I think it’s going to have to be amended again at some point in time for some clarification purposes,” he said.

Social conservative Kelly Shackelford, who helped write the amendment and led the campaign for it, called such worries “nonsense.” He said judges will have no problem detecting lawmakers’ intent, a view shared by Perry and Attorney General Greg Abbott, also a Republican.

“It was written with lock-tight language to avoid any sort of lawsuit having any real chance of success,” Shackelford said.

Similar bans on gay marriage have been written into the constitutions of 18 other states, and he said Texas conservatives learned from them.

“The different sorts of creative legal challenges had already occurred, and so it was drafted in a way to make it impervious to those kinds of attacks,” said Shackelford, president of the Plano-based Free Market Foundation and chief counsel of the Liberty Legal Institute.

The campaign was conducted mainly under the radar, with mailings and automated phone calls and exhortations from church pulpits.

Supporters expressed alarm that opponents, by declaring the amendment is poorly worded and could end up wiping out traditional marriage, had confused many Texans.

Opposition leaders defended the tactic as an attention-getter, though they also insisted that there’s a real question about what effects the amendment will have.

Maxey, a former House Democrat who was the first openly gay person elected to the Texas Legislature, said the defeat stings but won’t deter gays from demanding equality.

He pointed to two new political groups that will raise money to try to elect lawmakers more attuned to gay and lesbians’ concerns next year.

“This battle for civil rights is not just an event, it’s long term,” he said. After the polls closed, he made a point of visiting the University of Texas campus, where he said students voted more than 4-to-1 against the amendment.

“I looked at that and I said, `Well, that’s the next generation,’” he said. “I look at it with a lot of silver linings tonight.”

Also he said the campaign generated discussion of gay and lesbian couples’ rights in small cities “where I bet it probably hadn’t ever occurred,” which he said will advance gays toward an inevitable victory. “Mr. Shackelford called that “a nice theory.”

But opponents, he said, “never discussed the issue of why marriage should be a man and a man, or a woman and a woman. Their whole campaign was `avoid the issue.”’

He acknowledged that most younger voters probably opposed the amendment.

“That’s just a part of being young and immature,” Shackelford said. He said that as young people “gain life experience,” they’ll “realize the importance” of traditional, heterosexual marriage.

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(c) 2005, The Dallas Morning News.

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