Wednesday, February 23, 2011

HJR 102 - Repeal the Constitutional Ban on Marriage Equality

House Joint Resolution 102 by Rep. Garnet Coleman (D-Houston) would repeal Section 32 Article I of the Texas State Constitution, which reads:
"Marriage in this state shall consist only of the union of one man and one woman. This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."
Constitutional amendments in Texas must first be proposed by the legislature and then approved by a majority of Texas voters. The amendment that added Section 32 narrowly passed out of the legislature in the spring of 2005, then was approved that fall by an overwhelming 76% of Texas voters.

To be sure, public opinion has shifted since then. In a 2010 Equality Texas poll 63.1% of Texans said they supported allowing gay and lesbian couples to get a civil union.

A "joint resolution" is the mechanism by which the legislature proposes constitutional amendments. House joint resolutions are introduced in the House, Senate joint resolutions are introduced in the Senate, but in order for the proposed amendment to go before voters two thirds of both the House and Senate must approve it.

First, let's talk about what HJR 102 wouldn't do: if passed by the legislature and approved by voters HJR 102 would not permit same sex marriage in Texas. There is a provision in Family Code Section 6.204 which reads:
"A marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state."
So even if the constitutional prohibition out of the way the statutory prohibition remains and marriage equality is still just a dream in Texas.

What HJR 102 would do is to put the relationships of same-sex couples up for a vote once again, first by the legislature, then by Texas voters. Frankly, it's insulting. I firmly believe that the 14th amendment guarantee of equal protection already makes marriage equality a guaranteed right, the courts just haven't figured that out - yet. Civil rights should never be subject to public vote and my civil right to marry whomever I choose is best recognized by the courts, not subject to the whims of public opinion.

What's more, repealing the constitutional provision against marriage equality by public vote reinforces the notion that it was appropriate to ban the recognition of an inherent right by public referendum in the first place - it's not - and it never will be.

I appreciate what Rep. Coleman is trying to do, and I recognize that by filing this legislation he has stuck his neck out for the community, and for that he has my thanks, but (as much as it pains me to say it) this is the wrong way to go about getting recognition for same-sex relationships.

1 comment:

  1. But if HJR 102 is passed and section 32 is nullified, then won't Family Code Section 6.204 become unconstitutional?