2005 Texas Proposition 2 was a proposed amendment to the Constitution of Texas to define marriage as between one man and one woman, thereby prohibiting same-sex marriage. The amendment also prohibited the state from creating or recognizing "any legal status identical or similar to marriage." Placed on the ballot by House Joint Resolution 6, the ballot measure was approved with more than 76% of votes cast in favor. Supporters of the amendment included Governor Rick Perry and Attorney General Greg Abbott, while opponents included the National Gay and Lesbian Task Force, as well as numerous newspapers throughout the state.
The constitutionality of Proposition 2 was challenged in court two times in the cases of In re Marriage of J.B. and H.B and De Leon v. Perry; however, same-sex marriage did not become legal in Texas until the United States Supreme Court's June 2015 decision in Obergefell v. Hodges, finding all bans on same-sex marriage to be in violation of two clauses of the Fourteenth Amendment.
Background
In 1973, the Texas state legislature amended its state statute to require marriages to be between "a man and a woman." The change came after a same-sex couple applied for a marriage license the previous year in Wharton County. In 1997, Governor George W. Bush signed into law a change to marriage laws to explicitly prohibit the issuance of a marriage license to a same-sex couple. In 2003, the Texas legislature passed a defense of marriage act, which prohibited the state from recognizing same-sex marriages and civil unions performed in a foreign jurisdiction. Governor Rick Perry signed the bill on May 28 of that year, and it went into effect on September 1.
Legislative approval
Debate and proposed changes to HJR 6
House Joint Resolution 6 (HJR 6) placed Proposition 2 on the ballot. Introduced by State Representative Warren Chisum, the proposition originally did not contain a ban on civil unions. However, an amendment to the original resolution, to ban such contracts, was passed by the Texas House 98–41. This amendment to include a ban on civil unions was also authored by Chisum. In the state house, during debate on HJR 6 before it was approved, several legislators introduced amendments to the resolution, ranging from removing the provision banning civil unions, to providing that the amendment did not prohibit any contractual relationship already occurring. In the state senate, amendments ranged from prohibiting the state from recognizing a marriage if one of the individuals to the marriage had previously married three or more times, to stating that a marriage between a man and a woman "must include some sexual intercourse". The latter two were withdrawn before a vote could occur. Provisions of HJR 6 Within HJR 6 were three sections: Section 1, which defined marriage and prohibited civil unions; Section 2, which was not a part of the constitutional amendment, but rather a clause that clarified some of the amendment's intents; and Section 3, which provided the date in which the proposition would be decided as well as the ballot title. Section 2, the non-amendatory provision, stated the following: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.
House and Senate approval Texas Senate Democrats hoped that there would not be enough votes for the proposition to be put up for debate in the Senate; however, the 21-vote requirement was reached after three Democrats voted to bring it up. The amended resolution was approved by the House 101–29 on April 25, 2005, and by the Texas Senate 21–8 on May 21, 2005, after over two hours of debate. Section 1 of Article 17 of the Texas Constitution requires proposed constitutional amendments to be adopted by a vote of at least two-thirds of the membership of each chamber of the Texas Legislature.
On June 5, Governor Rick Perry signed HJR 6 at a ceremony, though his signature was symbolic because the measure still needed approval by voters.
Campaign and endorsements Both supporters and opponents of the measure worked to generate interest in the amendment.
Support Arguments from those in support of the amendment included that it was necessary to protect the traditional institution of heterosexual marriage, and that Texans should decide how marriage is defined, rather than judges.
Opposition Arguments from those in opposition to the amendment included that it did not allow for the possibility of civil unions, that same-sex marriage was already banned by state statute, making it unnecessary to ban constitutionally, and that federal law already allowed for Texas to not recognize same-sex marriages performed in foreign jurisdictions.
Contents and amendment
Ballot wording The amendment, which was decided by voters alongside the 2005 Texas constitutional amendment election on November 8, 2005, had the following information given to voters for it:PROPOSITION 2
"The constitutional amendment 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."
PROPOSICIÓN 2
"Enmienda constitucional que dispone que en este estado el matrimonio consiste exclusivamente en la unión de un hombre y una mujer y que desautoriza, en este estado o en alguna subdivisión política del mismo, la creación o el reconocimiento de cualquier estatus jurídico idéntico o semejante al matrimonio."
[] For / A Favor De
[] Against / En Contra De
Amendment language The amendment added Article 1 to Section 32 of the Texas Constitution:(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.
Results
Proposition 2 passed by a vote of more than three-to-one. With a voter turnout of ~18%, higher than the ~16% predicted by Secretary of State Roger Williams, this was the highest participation in a Texas constitutional amendment election since 1991. Of Texas's 254 counties, 253 of the 254 voted in favor of Proposition 2. Travis County, which includes Austin, was the only county to oppose the amendment, with slightly under 60% of voters opposing it. The highest level of support for the amendment came from Martin County, with 95.41% of votes cast in favor.