Texas Proposition 2 (2005)
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Proposition 2 was a referendum for a state constitutional amendment placed on the ballot by the Texas legislature and approved by the voters at the November 8, 2005 general election. The measure added a new provision to the
Texas Constitution The Constitution of the State of Texas is the document that establishes the structure and function of the government of the U.S. state of Texas and enumerates the basic rights of its citizens. The current document was adopted on February 15, 187 ...
, Article 1, Section 32, which provides that "Marriage in this state shall consist only of the union of one man and one woman", and "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage." Thus Texas became the 19th US state to adopt constitutional amendment banning same-sex marriage. It was the most populous state to adopt a constitutional ban on same-sex marriage until California passed its ban in November 2008. The amendment was later invalidated in June 2015 after the Supreme Court legalized same-sex marriage nationwide in the ''
Obergefell v. Hodges ''Obergefell v. Hodges'', ( ), is a landmark decision of the United States Supreme Court which ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of th ...
'' decision, though the amendment remains in the Texas Constitution.


Full text

Article 1, Section 32 of the Texas Constitution, as amended, states: The joint resolution proposing the amendment included additional language about rights that the ban on same-sex marriage was not meant to restrict:


Legislative approval

As provided in Article 17, Section 1 of the Texas Constitution, a proposed constitutional amendment is placed on the ballot only after the Texas legislature has proposed the amendment in a joint resolution of both the Texas senate and the Texas house of representatives. The joint resolution may originate in either chamber. The resolution must be adopted by a vote of at least two-thirds of the membership of each chamber. That means a minimum of 100 votes in the house and 21 votes in the senate. On April 25, 2005, the house voted 101 in favor and 29 against the proposed amendment to ban same-sex marriage and civil unions, authored by Warren Chisum. On May 21, 2005, the senate voted 21 in favor and 8 against the proposed amendment, and the ballot was set for November 8.


Campaign


Campaign funding and spending

Proponents raised $122,000, almost all from two donors, and opponents $391,000 in support of their campaigns on the proposition. Proposition 2 attracted nearly $1.3 million in contributions. Seven committees opposing the proposition raised $782,410, almost 55 percent more than the nearly $506,000 collected by nine committees supporting it. Four committees against the measure raised $774,440, or almost 99 percent of the money raised to fight Proposition 2.


Contributors across state lines

*The National Gay & Lesbian Task Force gave nearly $122,000. All but $10,000 went to one committee in Texas. *
Focus on the Family Focus on the Family (FOTF or FotF) is an American Christian fundamentalism, Evangelical Protestant organization founded in 1977 in Southern California by James Dobson, based in Colorado Springs, Colorado. The group is one of a number of Evangel ...
, a Colorado-based Christian organization led by Dr. James Dobson, gave almost $51,200 to a Texas committee it formed. Although the group's Kansas committee did not report any contributions, it did disclose expenditures of nearly $24,500, mostly on radio advertisements. *The
Human Rights Campaign The Human Rights Campaign (HRC) is an American LGBTQ advocacy group. It is the largest LGBTQ political lobbying organization within the United States. Based in Washington, D.C., the organization focuses on protecting and expanding rights for L ...
, a national organization promoting equality for homosexuals, contributed $34,900 to oppose the Texas measure.


Supporters

Supporters for the Proposition 2 (2005) were approximately 76% of the Texas voting population. Supporters claimed that marriage is a union between a man and a woman and these unions creates a child. The poll show at the time of the voting was approximately 82% in a public poll. The Texas Governor Rick Perry said at the time of the voting said, "Like the vast majority of Texans, I believe that marriage represents a sacred union between a man and a woman." Although his signature was irrelevant legally, Governor
Rick Perry James Richard Perry (born March 4, 1950) is an American politician who served as the 14th United States secretary of energy from 2017 to 2019 in the first administration of Donald Trump. He previously served as the 47th governor of Texas fr ...
held a signing ceremony at an evangelical church in Fort Worth.


Opponents

Shortly before the election, a Presbyterian minister in Austin, Tom Hegar, argued that "a liberal activist judge" might interpret the wording of Subsection (b) to outlaw marriage itself and said, "Don't risk it; vote against it." Attorney General
Greg Abbott Gregory Wayne Abbott ( ; born November 13, 1957) is an American politician, attorney, and jurist who has served since 2015 as the 48th governor of Texas. A member of the Republican Party (United States), Republican Party, he served from 2002 to ...
, however, defended the language of the amendment. Proponents claimed that criticism of the amendment's language was a "smokescreen" to confuse voters on the issue.


Pre-decision opinion polls

Many predicted Proposition 2 would pass, including opponents of Proposition 2. Supporters of Proposition 2, however, believed Texans might not vote because they will be overconfident after seeing landslide victories for marriage bans in other states. * A 2003 poll showed that 63% of Texans surveyed said they support a state prohibition on same-sex marriages. * An August 2005 Houston poll found that 64% of African Americans in Texas supported protection in the workplace for LGBT people. However, that same poll found 62% opposed same-sex couples being allowed to marry.


Results

Proposition 2 passed by a vote of more than three to one. With around 17.97% voter turnout, this was the highest participation in a constitutional amendment election since 1991, boasted by the same-sex marriage ban. Matt Foreman, executive director of the National Gay and Lesbian Task Force, said the outcome was not unexpected: "When you put a fundamental right of a minority up for popular vote, it's almost impossible to win."


County breakdown

Of Texas's 254 counties, 253 of the 254 voted in favor of Proposition 2. Travis County, which includes
Austin Austin refers to: Common meanings * Austin, Texas, United States, a city * Austin (given name), a list of people and fictional characters * Austin (surname), a list of people and fictional characters * Austin Motor Company, a British car manufac ...
, was the only county to oppose the amendment, with slightly under 60% of voters opposing it.
Houston Houston ( ) is the List of cities in Texas by population, most populous city in the U.S. state of Texas and in the Southern United States. Located in Southeast Texas near Galveston Bay and the Gulf of Mexico, it is the county seat, seat of ...
and
Dallas Dallas () is a city in the U.S. state of Texas and the most populous city in the Dallas–Fort Worth metroplex, the List of Texas metropolitan areas, most populous metropolitan area in Texas and the Metropolitan statistical area, fourth-most ...
, the 6th and 8th cities with the largest LGBT populations in the US, voted for Proposition 2. The largest county in Texas,
Harris Harris may refer to: Places Canada * Harris, Ontario * Northland Pyrite Mine (also known as Harris Mine) * Harris, Saskatchewan * Rural Municipality of Harris No. 316, Saskatchewan Scotland * Harris, Outer Hebrides (sometimes called the Isle ...
, voted 72.5 percent to 27.5 percent for Proposition 2, with 17.5 percent voter turn out; however, two Montrose-area precincts of the county with substantial LGBT populations reported turnouts of around 35 percent. King County, the most Republican county in Texas, had the highest voter turnout of any county, with 54.16 percent, while Starr County, the most Democratic county in Texas, had the lowest voter turnout of any county, with 3.05 percent. Of the counties containing the ten largest Texas cities, Houston,
San Antonio San Antonio ( ; Spanish for " Saint Anthony") is a city in the U.S. state of Texas and the most populous city in Greater San Antonio. San Antonio is the third-largest metropolitan area in Texas and the 24th-largest metropolitan area in the ...
, Dallas, Austin,
Fort Worth Fort Worth is a city in the U.S. state of Texas and the county seat of Tarrant County, Texas, Tarrant County, covering nearly into Denton County, Texas, Denton, Johnson County, Texas, Johnson, Parker County, Texas, Parker, and Wise County, Te ...
,
El Paso El Paso (; ; or ) is a city in and the county seat of El Paso County, Texas, United States. The 2020 United States census, 2020 population of the city from the United States Census Bureau, U.S. Census Bureau was 678,815, making it the List of ...
, Arlington, Corpus Christi, Plano, and Laredo, only Austin voted against Proposition 2. Of the counties containing the ten largest Texas universities,
Texas A&M University Texas A&M University (Texas A&M, A&M, TA&M, or TAMU) is a public university, public, Land-grant university, land-grant, research university in College Station, Texas, United States. It was founded in 1876 and became the flagship institution of ...
, the
University of Texas at Austin The University of Texas at Austin (UT Austin, UT, or Texas) is a public university, public research university in Austin, Texas, United States. Founded in 1883, it is the flagship institution of the University of Texas System. With 53,082 stud ...
, the
University of Houston The University of Houston (; ) is a Public university, public research university in Houston, Texas, United States. It was established in 1927 as Houston Junior College, a coeducational institution and one of multiple junior colleges formed in ...
, the
University of North Texas The University of North Texas (UNT) is a public university, public research university located in the Dallas–Fort Worth metroplex. Its main campus is in Denton, Texas, Denton, with a satellite campus in Frisco, Texas, Frisco. It serves as the ...
,
Texas State University–San Marcos Texas State University (TXST) is a public research university with its main campus in San Marcos, Texas, United States, and another campus in Round Rock. Since its establishment in 1899, the university has grown to be one of the largest univer ...
, the
University of Texas at Arlington The University of Texas at Arlington (UTA or UT Arlington) is a public research university in Arlington, Texas, United States. It is the second oldest university in the University of Texas System and was founded in 1895. It was in the Texas A& ...
,
Texas Tech University Texas Tech University (Texas Tech, Tech, or TTU) is a public university, public research university in Lubbock, Texas, United States. Established on February 10, 1923, and called Texas Technological College until 1969, it is the flagship instit ...
, the
University of Texas at San Antonio The University of Texas at San Antonio (UTSA or UT San Antonio) is a Public university, public research university in San Antonio, Texas, United States. Established in 1969,University of Texas at El Paso The University of Texas at El Paso (UTEP) is a public university, public research university in El Paso, Texas, United States. Founded in 1913 as the State School of Mines and Metallurgy, it is the third oldest academic component of the Univers ...
, and the
University of Texas at Dallas The University of Texas at Dallas (UTD or UT Dallas) is a public research university in Richardson, Texas, United States. It is the northernmost institution of the University of Texas System. It was initially founded in 1961 as a private res ...
, only the University of Texas at Austin voted against Proposition 2.
Glen Maxey Glen Maxey (born February 23, 1952) is an American politician from Austin, Texas, who was the first openly gay member of the Texas Legislature. Active in the fight for gay rights, Maxey was a central figure in the establishment of facilities for ...
, the first openly gay member of the Texas House of Representatives, visited the University of Texas campus after the polls closed, where he said students voted more than 4-to-1 against the amendment. Students at the University of Houston, University of North Texas, and Texas State University voted 2-to-1 against the amendment. However students at Texas A&M University and Baylor University voted 6-to-1 in favor of the amendment.


Effects

The amendment, which took effect on November 23, 2005, constitutionally banned same-sex marriages, which were never recognized by the state and was statutorily banned since 1973, and civil unions or civil union equivalents, which were never recognized by the state and was statutorily banned since 2003. Texas became the 18th US state to ban same-sex marriage in its constitution and 12th US state to ban civil unions or civil union equivalents in its constitution. This preempted the state judiciary from requiring the state to legally recognize same-sex marriages or civil unions or civil union equivalents and preempted the
Texas Legislature The Texas State Legislature is the state legislature of the U.S. state of Texas. It is a bicameral body composed of a 31-member Senate and a 150-member House of Representatives. The state legislature meets at the Capitol in Austin. It is a p ...
from enacting a statute legalizing same-sex marriages or civil unions or civil union equivalents. Domestic partnerships in Texas, legal in 1 county and 2 municipalities at the time, were unaffected by the amendment. In November 2009,
Barbara Ann Radnofsky Barbara Ann Radnofsky (born July 8, 1956) is an American Democratic politician, author and mediator from the U.S. state of Texas. She was the first woman to have won the Democratic nomination for a U.S. Senate seat in Texas. Early life and care ...
, a candidate for
Texas Attorney General The Texas attorney general is the chief legal officer
of the
, claimed that the amendment, because it was poorly drafted, outlawed all marriage in Texas. The
Williams Institute The Williams Institute is a public policy research institute based at the UCLA School of Law focused on sexual orientation and gender identities issues. History The Williams Institute was founded in 2001 through a grant by Charles R. "Chuck" ...
projected that legalizing same-sex marriage in Texas would add $182.5 million to the state's economy in the first three years.


Legal challenge

On October 1, 2009, a state district court judge in the case of '' In Re Marriage of J.B. and H.B.'' ruled the amendment unconstitutional under the
Equal Protection Clause The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State... deny to any person within its jurisdiction the equal pr ...
of the Fourteenth Amendment of the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...
. The lawsuit was filed by two men living in Dallas who had married in Massachusetts in 2006. They were seeking a divorce in Texas because Massachusetts permits only state residents to sue for divorce. Texas Attorney General
Greg Abbott Gregory Wayne Abbott ( ; born November 13, 1957) is an American politician, attorney, and jurist who has served since 2015 as the 48th governor of Texas. A member of the Republican Party (United States), Republican Party, he served from 2002 to ...
and Governor Rick Perry appealed to the Fifth Court of Appeals in Dallas. On August 31, 2010, the appellate court reversed the district court, ruling that the amendment does not violate the U.S. Constitution and that district courts in Texas do not have
subject-matter jurisdiction Subject-matter jurisdiction, also called jurisdiction ''ratione materiae'', is a legal doctrine regarding the ability of a court to lawfully hear and adjudicate a case. Subject-matter relates to the nature of a case; whether it is criminal, ci ...
to hear a same-sex divorce case.


See also

* LGBT rights in Texas * LGBT history in Texas *
U.S. state constitutional amendments banning same-sex unions Prior to the Supreme Court's decision in ''Obergefell v. Hodges'' (2015), U.S. state constitutional amendments banning same-sex unions of several different types passed, banning legal recognition of same-sex unions in U.S. state constitutions, ...


References


Further reading

*


External links


State Ballot Measures, 2005 – National Institute on Money in State Politics
{{Same-sex marriage in the United States 2005 in LGBTQ history LGBTQ in Texas 2005 in American law U.S. state constitutional amendments banning same-sex unions proposition 2 2005 ballot measures in the United States Texas ballot measures Same-sex marriage ballot measures in the United States Marriage in Texas