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If you want contact info for this guy, PM me: As a member and former head of the Houston Federalist Society, faculty advisor to the UH law student chapter throughout the 1990s, and as an erstwhile Republican who worked under Lyn Nofziger and have attended state and local Republican conventions for thirty years. Because they needed candidates to be token opposition, I ran under the Conservative party banner both for Congress and the New York General Assembly while I attended Columbia Law School, where I also headed the Federalist Society student chapter. I make an occasional political speech, write an occasional political column or op ed piece and complain a lot, increasingly about the Republicans I helped take over the Texas Senate and then House.
With my long-standing Republican credentials, and a bit of legal and constitutional knowledge, it is with every fiber of my being that the Proposition 2 Marriage Amendment offends me. Regardless of your stance on same-sex marriage -- and frankly I would be more restrictive than my wife and would avoid the hot-button word "marriage" with its sacramental overtones -- I would urge every conservative and libertarian to careful consider voting FOR Proposition 2. It is wrong, punitive and frankly fraught with peril for many existing legal relationships, including some that will affect heterosexuals not just homosexuals.
First, voting for Proposition 2 is not necessary to prevent same-sex marriage. Texasgop's email is flat wrong that " This amendment would protect Texans from having to recognize same-sex and other similar unions from other states." Marriage performed on Texans in another jurisdiction will not be afforded "Full faith and credit" if disallowed by the law of the jurisdiction of their residency. Texas' Marriage code already defines marriage as one male and one female. That is established Texas law and no federal or state judge can overturn it, as if any elected judge in this state would risk voters' wrath.
Federal judge's are unlikely to meddle with the state's definition of "marriage," whether statutory as now or if embedded in the state constitution. However, even if enacted, the Marriage Amendment could still be overturned by an activist federal judge on the basis of the federal Constitution on some yet-to-be-introduced federal law. Making the Marriage Amendment part of the Texas Constitution would not affect a federal judge's ability to upset state marriages any more than state law could. Hence, there is no benefit to the Marriage Amendment, despite the distortions from its proponents.
Defeat of Proposition 2 will not make any Texas couple, straight or gay, one bit less safe from what Massachusetts, Vermont, Hawaii or California may or may not do. Nor will defeat of Proposition 2 particularly "help" gay couples in this state even if their place of worship will perform a wedding.
And defeat of Proposition 2 will not mean that same-sex marriage will be permitted in Texas, even if some gay couples call themselves "married." And there are churches in every metropolitan area of Texas "performing gay marriages" so it is not the two Coasts that are going that are goin to ship gay couples into Texas. That is another of the proponents' (perhaps just uninformed) distortions that a NO Vote on Proposition 2 is the same as a vote for gay marriage. NOTHING COULD BE FURTHER FROM THE TRUTH. It will take a majority of both houses of the Legislature and the Governor to meddle with the3 existing marriage definition. Whether or not state demographics change to make the current Republican dominance shaky, there is no realistic fear that the Legislature is going to pass or a Governor fail to veto same-sex marriage, or even domestic partnerships or some form of civil union open to gays as well as straights.
Frankly, there may be adverse affect in Proposition 2 to some gay couples who have structured their health-care, financial and end-of-life planning through contracts, wills and other legal documents. Exactly what will be allowed under Section 2 of the Marriage Amendment for these private-structuring arrangements is unknown because of the breadth of Section 1 b of Proposition 2. How similar to "marriage" can private structuring get before it is prohibited. And note that Section 1 b omits "Substantially similar" where other states make that limited qualification. Is it too similar to "marriage" for a gay couple's will to be reciprocal -- NOBODY KNOWS.
While lawyers will litigate this in Texas' courts for decades, another aspect of the possible effect of the Marriage Amendment, if passed, could affect a lot of opposite-sex couples. One of the unknowns about Proposition 2 is whether the long-standing Texas practice of common-law marriage will be undone. Whatever one may think of "marriage" without benefit of clergy, a lot of straight couple cohabiting over the years have filed joint income tax returns or received a "spouse's" property through right of inheritance. It is more than possible that passage of Proposition 2 will open "spouses" to third-party contests to inheritance, rights of survivorship or even pensions because common-law marriage is revoked by the Marriage Amendemnt. I am told that especially after the Second World War and Korean Conflict, large numbers of non-religious people -- especially Hispanics and blacks -- took advantage of common-law marriage. They have held themselves out as "married" for forty to sixty years and have failed to structure their lives to protect in case their "marriage" is invalidated as an unintended consequence of Proposition 2. These are older straight couples whose children are not likely to challenge a widow getting her common-law husband's pension or the widower staying on in the house that was his wife's family property. But what if greedy cousins who know there was neither a civil ceremony or church wedding want to boot the old man because his common-law marriage no longer accords him right to inherit the house he'd shared for decades.
What if penny-pinching former employers use the Marriage Amendment to go back and examine the bona fides of the "marriage" of beneficiaries of health-care or pension plans. Could a company downsize its pension liability by saying the Texas Constitution forbids it paying benefits to a common-law spouse. NOBODY KNOWS, but I will guaranty that it will be tried, and then granny is going to have to litigate her entitlement to her common-law husband's benefits.
Voting against Proposition 2 is not voting for same-sex marriage or anything like it. Gays from Massachusetts are not going to flood Texas demanding partner benefits or weddings in churches. Voting against the Marriage Amendment is not going to enable state or federal judges to exercise some activist view of equality for gays and lesbians. Voting against the Marriage Amendment will likely prevent lots of litigation about its scope and what private structuring of persons' lives is permitted before becoming "similar" to the rights of a married man and woman. Defeat of Proposition 2 will make sure that a surviving common-law spouse does not have to fight to stay in the marital residence or to keep receiving pension or other benefits that a common-law marriage has entitled them. Defeat of Proposition 2 will keep government and the courts out of people's lives.
As the old Republican Creed was less government, separation of church and state and maximum personal autonomy, Republicans need to oppose Proposition 2's misguided effort to prevent same-sex marriage already prohibited by state law. If you still are on the fence regarding passage of the Marriage Amendment, I'd be happy to provide DVD of two debates on this Proposition 2 Marriage Amendment that occurred at the University Of Houston Law Center and South Texas College of Law, respectively on October 10 & 11, 2005. Both Federalist Society and Christian Legal Society sponsors of those programs have decided that the opposition to Proposition 2 handedly won, irrespective of those students pre-existing or current views on same-sex marriage or any kind of civil union for gay couples. Several of those students have promised to vote against Proposition 2 even while stating their belief in the traditional definition of marriage.
Because Proposition 2 Marriage Amendment will be fraught with perils for older straight couples as well as gays, Republicans should vote NO ON TWO. Because it is unnecessary and would not accomplish any intended purpose, even those vehemently against extending any marital rights to gays should vote NO ON TWO.
Thanks for reading more than proponents' attractive and misleading sound bites on what Proposition 2 means. After conservative and libertarians understand and think about it, I believe fair-minded people will know it must be NO ON TWO.
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