Wednesday, July 3, 2013

Same-Sex Marriage In TX 2nd Special Session

Members of the Texas 83rd Legislature filed bills regarding civil unions and same-sex marriage in Texas.

Three bills were filed in the Texas House of Representatives. HB 20 (filed by Burnam, D-Fort Worth) , HCR 2 (filed by Anderson, R-Waco), and HJR 11 (filed by Coleman, D-Houston) all propose allowing for same-sex marriages or civil unions in Texas.

Currently, the Texas Constitution defines legal marriage in Texas as a union of one man to one woman (and vice versa). The bills require an alteration of the state Constitution.

The Texas 83rd Legislature was recalled, by Governor Perry, to a second special session. They were given three issues to address:  abortion regulatory reform, toll roads in Texas, and sentences for minors who commit capital crimes.

HB 20 revolves around removing the terms "husband" and "wife" from all official state documents, replacing them with the gender-neutral term "spouse".  [Full Text of the bill available here]

      (d)  Any reference in this code or in a law outside this code to a "husband" or "wife" or to "man and wife" means "spouse" or "spouses," as applicable. For purposes of this subsection, "spouse" has the meaning assigned by Section 3.401(5).

HCR 2 is a call for a constitutional convention to rewrite and reorganize the state constitution. The Texas Constitution is the second longest such document in the United States, with over 400 Amendments. Anderson proposed the resolution in order to take the spirit of the Constitution and reorganize it, along with its amendments, into a fresh constitution.

Doing so brings back into debate every amendment that has been passed, including the controversial amendment that defines marriage, by law, in the Republic of Texas. It is not a direct call to repeal that amendment. However, such an action, should the resolution pass, removes some obstacles, creating an easier path than a constitutional repeal.

be it
       RESOLVED, That the 83rd Legislature of the State of Texas, 2nd Called Session, hereby request the lieutenant governor and the speaker of the house of representatives to create a joint interim committee to study a nonsubstantive reorganization of the Texas Constitution; and, be it further 
       RESOLVED, That the committee submit a full report, including findings and recommendations, to the 84th Texas Legislature in January 2015.
[Full Text of the Resolution available here]

Meanwhile, HJR 11 (House Joint Resolution) calls for a direct repeal of Section 32 of Article I of the Texas Constitution.


proposing a constitutional amendment to repeal the constitutional provision providing that marriage in this state consists only of the union of one man and one woman and prohibiting this state or a political subdivision of this state from creating or recognizing any legal status identical or similar to marriage. 
       SECTION 1.  Section 32, Article I, Texas Constitution, is repealed. 
       SECTION 2.  This proposed constitutional amendment shall be submitted to the voters at an election to be held November 5, 2013. The ballot shall be printed to permit voting for or against the proposition: "The constitutional amendment repealing the constitutional provision providing that marriage in this state consists only of the union of one man and one woman and prohibiting this state or a political subdivision of this state from creating or recognizing any legal status identical or similar to marriage."

Reactionary Legislation?

The reasons for such legislation are varied. Anderson's resolution to reorganize the Texas Constitution comes from a stance of common sense. The document should, perhaps, be streamlined and made easier to read, analyze, cite, and address.

However, the remaining two bills could be perceived as reactionary. The US Supreme Court ruled that the Defense of Marriage Act was unconstitutional on two grounds. The primary stated reason was in line with the case's arguments. It violates the 14th Amendment's directive that all federal legislation promote fair and equal treatment under the law. With several states having legalized same-sex marriage or civil unions in their states, DOMA no longer constitutes "fair and equal" treatment.

The second cited reason the Court struck down DOMA is that it violates the 10th Amendment. The 10th Amendment reserves any authority or responsibility not explicitly stated in the US Constitution to the States or Individual Citizens. The US Constitution grants the federal government no authority over marriages or marriage licenses. Those are state level responsibilities and authorities.

The decision leaves it squarely within the purview of each state to determine to whom it shall issue marriage licenses. 

The Supreme Court's ruling on California's "prop 8" was to not rule. The wording states the issue is vacated at the federal level, not being within its authority to decide the case in the manner it was presented. It does not strike down any state-level legal definition of marriage. Coleman's resolution to repeal Sec. 32, Article I of the Texas Constitution may be counting on a popular misconception that the "Prop 8" decision renders one-man-one-woman legal definitions of marriage.

Regardless of the reasoning behind these bills, they are beyond the stated scope for the Second Special Session of the Texas 83rd Legislature. They pose to promote debate during times that may better serve addressing the stated purposes for the special session. Leave this particular debate to a more appropriate time.