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Proposition 2 was a referendum for a state constitutional amendment placed on the ballot by the Texas legislature and approved by the voters at the November 8, 2005 general election. The measure added a new provision to the Texas Constitution, Article 1, Section 32, which provides that "Marriage in this state shall consist only of the union of one man and one woman", and "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage." Texas thus became the nineteenth US state to adopt constitutional amendment banning same-sex marriage. It was the most populous state to adopt a constitutional ban on same-sex marriage until California passed its ban in November 2008.
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Article 1, Section 32 of the Texas Constitution, as amended, states:
(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.
The joint resolution proposing the amendment included additional language about rights that the ban on same-sex marriage was not meant to restrict:
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.
Legislative approval
As provided in Article 17, Section 1 of the Texas Constitution, a proposed constitutional amendment is placed on the ballot only after the Texas legislature has proposed the amendment in a joint resolution of both the Texas senate and the Texas house of representatives. The joint resolution may originate in either chamber. The resolution must be adopted by a vote of at least two-thirds of the membership of each chamber. That means a minimum of 100 votes in the house and 21 votes in the senate.
On April 25, 2005, the house voted 101 in favor and 29 against the proposed amendment to ban same-sex marriage and civil unions, authored by Warren Chisum. On May 21, 2005, the senate voted 21 in favor and 8 against the proposed amendment, and the ballot was set for November 8.
Campaign funding and spending
Proponents raised $122,000, almost all from two donors, and opponents $391,000 in support of their campaigns on the proposition.
Proposition 2 attracted nearly $1.3 million in contributions. Seven committees opposing the proposition raised $782,410, almost 55 percent more than the nearly $506,000 collected by nine committees supporting it. Four committees against the measure raised $774,440, or almost 99 percent of the money raised to fight Proposition 2.
Contributors across state lines
Supporters
Supporters for the Proposition 2 (2005) were approximately 76% of the Texas voting population. Supporter in the Texas State were large member from different religions and from Conservatives. Members of different religions support the proposition with overwhelming majority in the state stating that marriage was formed by the God they worship and believe in. The supporters in public opinion claimed that marriage is a union between a man and a woman and these unions creates a child. The poll show at the time of the voting was approximately 82% in a public poll. The Texas Governor Rick Perry said at the time of the voting said, “Like the vast majority of Texans, I believe that marriage represents a sacred union between a man and a woman.” Although his signature was irrelevant legally, Governor Rick Perry held a signing ceremony at an evangelical church in Fort Worth.
Opponents
Shortly before the election, a Presbyterian minister in Austin, Tom Hegar, argued that "a liberal activist judge" might interpret the wording of Subsection (b) to outlaw marriage itself and said, "Don't risk it; vote against it." The Save Texas Marriage political action committee also argued that the poorly drafted amendment would ban all forms of marriage.
Attorney General Greg Abbott, however, defended the language of the amendment. Proponents claimed that criticism of the amendment's language was a "smokescreen" to confuse voters on the issue. Kelly Shackleford, the president of the Free Market Foundation and a supporter of the amendment, said: "The words clearly recognize marriage in Texas as between a man and a woman and refuse to recognize attempts to recreate that status through any other means."
Pre-decision opinion polls
Many predicted Proposition 2 would pass, including opponents of Proposition 2. Supporters of Proposition 2, however, believed Texans might not vote because they will be overconfident after seeing landslide victories for marriage bans in other states.
Results
Proposition 2 passed by a vote of more than three to one. With around 17.97 percent voter turnout, this was the highest participation in a constitutional amendment election since 1991, boasted by the same-sex marriage ban. Matt Foreman, executive director of the National Gay and Lesbian Task Force, said the outcome was not unexpected: "When you put a fundamental right of a minority up for popular vote, it's almost impossible to win."
County breakdown
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. Houston and Dallas, the 6th and 8th cities with the largest LGBT populations in the US, voted for Proposition 2. The largest county in Texas, Harris, voted 72.5 percent to 25.5 percent for Proposition 2, with 17.5 percent voter turn out; however, two Montrose-area precincts of the county with substantial homosexual populations reported turnouts of around 35 percent. King County, the most Republican county in Texas, had the highest voter turnout of any county, with 54.16 percent, while Starr County, the most Democratic county in Texas, had the lowest voter turnout of any county, with 3.05 percent.
Of the counties containing the ten largest Texas cities, Houston, San Antonio, Dallas, Austin, Fort Worth, El Paso, Arlington, Corpus Christi, Plano, and Laredo, only Austin voted against Proposition 2. Of the counties containing the ten largest Texas universities, Texas A&M University, the University of Texas at Austin, the University of Houston, the University of North Texas, Texas State University–San Marcos, the University of Texas at Arlington, Texas Tech University, the University of Texas at San Antonio, the University of Texas at El Paso, and the University of Texas at Dallas, only the University of Texas at Austin voted against Proposition 2. Glen Maxey, the first openly gay member of the Texas house of representatives, visited the University of Texas campus after the polls closed, where he said students voted more than 4-to-1 against the amendment. Students at the University of Houston, University of North Texas, and Texas State University voted 2-to-1 against the amendment. However students at Texas A&M University and Baylor University voted 6-to-1 in favor of the amendment.
Effects
In November 2009, Barbara Ann Radnofsky, a candidate for Texas attorney general, claimed that the amendment, because it was poorly drafted, outlawed all marriage in Texas.
The Williams Institute projected that legalizing same-sex marriage in Texas would add $182.5 million to the state's economy in the first three years.
Legal challenge
On October 1, 2009, a state district court judge in the case of In Re Marriage of J.B. and H.B. ruled the amendment 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. They were seeking a divorce in Texas because Massachusetts permits only state residents to sue for divorce. 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 does 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.