October 16, 2005
Is this the best the pro-Prop 2 folks can do?

I knew when I saw dueling op-eds on Prop 2 today that the one advocating a vote in favor of the Double Secret Illegal Anti-Gay Marriage Amendment would be disingenuous and evasive. It's hard to see what else it could have been. Sadly, it's also mind-numbingly stupid, the kind of stupid that makes you wonder if it wasn't submitted by the opposing side as a way to entirely discredit the argument.

Why do I say stupid? Because of this:

Opposition to Proposition 2 has only one point repeated loudly, and amplified in the media. The sum total of the argument is that anyone against same-sex marriage is a bigoted homophobe.

Well, no, actually. There's at least three arguments against Prop 2 that I can think of, none of which use the words "bigotry" or "homophobia":

1. Gay marriage is already illegal in the state of Texas, meaning that the stated purpose of Prop 2 is irrelevant.

2. The language of Prop 2 which bans "recognizing any legal status identical or similar to marriage" is sufficiently broad and vague that it may be construed to outlaw contracts between two unmarried people (gay or straight) in which one confers certain (often property-related) rights to the other - see here for more on that. It may also be interpreted as banning domestic partner benefits and even common-law marriage.

3. Prop 2 does nothing to actually "protect" the institution of marriage, whatever "protect" means in this context.

Addressing that last point first, supporters of Proposition 2 have frequently used various "slippery slope" arguments to bolster their case. For example, Warren Chisum, the House sponsor of the bill that led to Prop 2 recently said "If you start down that road, where do you stop? Do you have multiple partners?" If it was Rep. Chisum's intent to ban polygamy (which last I checked is illegal in all fifty states), then why didn't he introduce a bill to do that? What does Prop 2 do to prevent polygamy that existing laws do not do?

Similarly, the author of this piece says:

Texans for traditional marriage have reason to feel protective of the definition of marriage. Marriage suffered a blow three decades ago with no-fault divorce. This allowed marriages to end for almost no reason. The result has led to an abundance of data showing how children suffer when their parents break up the family. We need to re-strengthen the permanence of marriage, not weaken it.

If no-fault divorce is a problem - and I neither concede nor deny that it is - how does Prop 2 help? Why not pass a bill to make getting a divorce harder? Or for that matter, why not pass a bill to make getting married harder? How will Prop 2 prevent even one no-fault divorce from occurring?

Going to point one, another common theme heard by Prop 2 supporters is that they want to make a ban on gay marriage impervious to being overturned by a so-called "activist" court. I can only wonder which of the nine elected or appointed Republican justices on the state Supreme Court they think is hankering to do so; if they have any in mind, my next question is why aren't they gearing up a primary challenge? And if some day there is a majority (not just a lone maverick or two) on the court which would look favorably on a challenge to the 2003 Lege's Defense of Marriage Act, it would mean that a majority of the voters here approve of having such justices on the court, which I submit to you means there'd be an equivalent majority in favor of taking that action legislatively, as should be done. Of course, by making this a part of our overburdened Constitution, that hypothetical future will of the people would be thwartable by a one-third minority in either chamber. Somehow, that point always seems to get overlooked by Prop 2 proponents.

Now, there is still a threat from the federal judiciary. As discussed here, an amendment to the state constitution would carry no more weight in a federal courthouse than a regular statute would. Which leaves us back where we started.

Point two is the most worrisome of the three, and frankly there's little that a Prop 2 supporter can say besides "No it won't!" against it. We don't know what the effect will be until a judge rules on it. It's possible that all of us who oppose Prop 2 are overwrought about this point, but why should we even have to worry about it? Again, if it was the intent of Chisum et al to simply reaffirm the existing legislation, then why add that provision? What purpose does this serve?

Though it does at least mention the already-illegal status of gay marriage in Texas, the companion anti-Prop 2 piece largely addresses the bigotry question. This is surely important, but it's also reactive. Prop 2 supporter have a host of questions to answer about why their solution to a nonexistent problem is necessary. We need to be asking them those questions.

Posted by Charles Kuffner on October 16, 2005 to Election 2005 | TrackBack