They don’t call Texas the “Buckle of the Bible Belt” for nothing.  I was not surprised that Proposition 2 (PDF) passed, although I was a little surprised at the margin.

Here is the exact text that was added to the Texas constitution by this vote:

     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.

At a personal level, I did not like this amendment for several reasons.  First, I personally know several gay couples and have a hard time institutionalizing a ban on them formalizing their relationships, regardless of whether we call it marriage or civil unions.  Primarily, though, I thought the addition of subsection (b) was going too far.  If someone wants to “protect marriage,” as the proponents of this amendment were at great pains to hammer into our heads at every opportunity (when they weren’t quoting scripture), they didn’t need the second part.  Further, the phrase “similar to marriage” held great concern, in that it seemed to hold the potential under the right legal challenge with the right judge to perhaps invalidate some private contracts (which are legal documents, after all) which are the only avenue that gay couples have at this time to arrange the logistics of their relationships. 

It turns out that the enabling legislation does address this issue.  However, it does so in a way that does not give the finding the same force as the above amendment.  Here’s the text:

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.

I’m not a lawyer, but my understanding of this is that by including this finding it provides a “judicial hint” should a court have to make a ruling in an area affected by this amendment.  Still, I’m concerned that because it’s phrased as a finding it doesn’t necessarily become law, and we all know that we can’t rely on judges these days to necessarily follow common sense or even the wishes of those who wrote the original law.

I suppose only time and court challenges will tell whether this problem will actually come up.  It also leads me to wonder if this could be a hook to allow SCOTUS to invalidate the amendment, if it could be found that it violates some clause of the U.S. Constitution.  I suspect that it’s not likely, but who knows?

Proponents of gay marriage now have a serious uphill battle ahead of them in Texas, because it will require convincing about 30% of those who voted to change their minds after somehow managing to get a bill through the Texas legislature.  And I don’t think this can strictly be seen as a partisan thing.  To get the kind of margin by which this amendment was passed it appears that this was an issue that crossed party lines.  So simply electing Democrats to replace Republicans won’t be sufficient.  Most Texas Democrats (outside of the big cities) are fairly conservative (and are probably considered raving right-wingnuts by the national Democrat party).

Update:  Dan Morgan (via Stephen Green) says something that I’d been thinking in the back of my mind.  In short, the argument is that this sort of relationship is here to stay and it’s only a matter of time before it gets recognized, mainly for the sake of any children involved.  Perhaps a good area of attack for the gay marriage supporters to change public opinion would be a campaign to show real people and children who are harmed by lack of a formalized relationship mechanism in the law.