2005 Texas Proposition 2

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." Following the United States Supreme Court's June 2015 decision in Obergefell v. Hodges, which found all bans on same-sex marriage to be in violation of two clauses of the Fourteenth Amendment, the ban became unenforceable, thereby legalizing same-sex marriage.

In 1973, the Texas state legislature amended 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.^[1] 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.^[1] 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.^[2] Governor Rick Perry signed the bill on May 28 of that year,^[2] with it going into effect on September 1.^[3]

House Joint Resolution 6 (HJR 6) placed the amendment on the ballot. Introduced by State Representative Warren Chisum, the bill was approved by the state house 101– 29 on April 25, 2005,^[4] and by the state senate 21–8 on May 21, 2005.^[5] 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,^[6] amounting to a minimum of 100 votes in the House and 21 votes in the Senate.^[7]

Before the bill was approved, during debate on it, in the state house, several legislators introduced amendments to the original bill, ranging from allowing civil unions to providing that the amendment did not prohibit any contractual relationship already occurring.^[8] In the state senate, amendments to the bill ranged from prohibiting the state from recognizing a marriage if one of the individuals to the marriage had previously married 3 or more times, to stating that a marriage between a man and a woman "must include some sexual intercourse".^[9] The latter two were withdrawn before a vote could occur.^[9]

Arguments from those in support of the amendment included that it was necessary to protect the traditional institution of heterosexual marriage,^[10] and that Texans should decide how marriage is defined, rather than judges.^[11]

Arguments from those in opposition to the amendment included that it did not allow for the possibility of civil unions,^[13] that constitutions should "protect human rights, not limit them,"^[14] that same-sex marriage was already banned by state statute, making it unnecessary to ban constitutionally,^[15] and that federal law already allowed for Texas to not recognize same-sex marriages performed in foreign jurisdictions.^[16]

The amendment, which took place along with the 2005 Texas constitutional amendment election on November 8, 2005,^[22] had the following information given to voters for it:^[23]

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

The amendment added Article 1 to Section 32 of the Texas Constitution, which states:^[24]

(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.

Proposition 2 passed by a vote of more than three to one.^[22] With around 18% voter turnout, this was the highest participation in a constitutional amendment election since 1991.^[25] Of Texas's 254 counties, 253 of the 254 voted in favor of Proposition 2.^[22] Travis County, which includes Austin,^[26] was the only county to oppose the amendment, with slightly under 60% of voters opposing it.^[22]

The following table details the results by county:^[22]

Texas became the 19 state to adopt a state-level constitutional ban on same-sex marriage.^[27]

On October 1, 2009, a state district court judge ruled in the case of In Re Marriage of J.B. and H.B. that the amendment was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The lawsuit was filed by two men living in Dallas who had married in Massachusetts in 2006. Texas Attorney General Greg Abbott 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 did not violate the U.S. Constitution and that district courts in Texas do not have subject-matter jurisdiction to hear a same-sex divorce case.^[28]

On February 26, 2014, Federal Judge Orlando Garcia ruled Texas' same-sex marriage bans to be unconstitutional,^[27] though he stayed his ruling after anticipating it would be appealed.^[29] A three-judge panel of the 5th Circuit Court of Appeals held a hearing on the matter nearly a year later.^[30] Though, before they could rule, the United States Supreme Court delivered its ruling in Obergefell v. Hodges, finding all bans on same-sex marriage to be in violation of the Due Process and Equal Protection clauses of the Fourteenth Amendment.^[31] Thereafter, in light of the Supreme Court's decision, Judge Garcia lifted the stay from his ruling, allowing his decision taking down the ban to go into effect.^[30]

• LGBTQ rights in Texas
• LGBTQ history in Texas