Monday, January 31, 2011

Bipartisan Votes Key to LGBT Legislative Successes Part V

In which bigotry is enshrined in the State Constitution, and some flee having an opinion.

[Be sure to read parts I, II, III & IV]
79th Session
HJR 6 by Chisum
(Texas Constitutional DOMA Amendment)
Yea (19D, 82R)
Nay (29D)
Present, Not Voting (7D 1R)
Absent (5 D)
Absent, Excused (4D 3R)

In 2003 Rep. Warren Chisum was successful in ramming a bill prohibiting marriage equality through the Texas House. Bills create statutes and codes, secondary forms of laws that are trumped by the state constitution. The Texas State constitution reads in its first article:
"All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services."
In other words: "The law must apply equally to everyone and can't be written to allow some people to exercise power that other people don't have". In other words: "A statute that allows some people to enter into a state recognized contract but not others is unconstitutional".

Chisum's a smart guy, he recognized this conflict between the constitutional guarantee of equality and the statutorily-provided prohibition on marriage equality. No doubt this recognition was brought home by the string of successful court cases that demonstrated other state's constitutions provided similar protections and were equally in conflict with those state's marriage equality bans.

The only way to address the conflict, and maintain the ban, was to amend the constitution. This is easier said than done. Amendments to the state constitution must be approved by a majority of voters in the state. In order to place amendments on a statewide ballot a two-thirds majority of both the House and Senate must approve them. This means that just 11 Senators or 51 Representatives can ban together to block any proposed amendment.

The 79th Texas House had 86 Republicans and 64 Democrats. If the vote fell on partisan lines it would have failed. Unfortunately the vote did not fall on partisan lines.

Before the House vote Rep. Chisum offered an amendment: "this state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage". Chisum was concerned that, despite the resolution's clear prohibition against marriage equality, civil unions or county or municipal domestic partnership registries would be created to circumvent the ban. The amendment was accepted.

This amendment gave moderate House Democrats an "out". Many expressed a concern that the amendment, as worded, would ban ALL marriage in the state of Texas. They could oppose the proposed change to the constitution without being labeled as supporting marriage equality by basing their vote on the recent amendment. Seven of those voted "Present, not voting" in protest, while others voted "Nay" but entered unequivocal statements in the record that they opposed marriage equality, but were concerned the new version of the resolution would ban all marriage.

Five Democrats decided to be "absent" during the vote rather than have an opinion on record. There were two separate votes on second reading of HJR 6. Since the first vote was so close a "verification vote" was taken to give anyone who wasn't in the chamber a chance to vote the second time around. With that much warning the only reason for an "absent" vote is because the member did not want to be forced onto the record. Because an HJR requires two thirds of members to vote "yea" an "absent" is as good as a "nay" as far as the vote count is concerned, but it's upsetting to see that kind of cowardice from people who are charged with representing the public. By leaving the room those representatives abdicated their responsibility to represent.

HJR 6 passed the verification vote with 101 voting yea, if only 2 of those had voted no, or even decided to just leave the room, the resolution would have failed. Two votes - that's all. Two votes enshrined bigotry in our constitution. I wonder how many phone calls those two representatives received. I wonder how many constituents visited those reps in their offices and asked them to stand up for what's right. I'd be willing to bet it was few, if any. State Representatives simply don't hear from constituents that often, even on the most controversial of issues. In a state with 25 million people even the governor's office usually receives fewer than 300 calls about any given bill.

One e-mail, or phone call, or visit can make a world of difference. We must - we must - we must engage the people who are elected to represent us. We can't rely on party affiliation. We can't rely solely on our lobbying organizations. We have to take responsibility for influencing the legislation that affects us. If we are not willing to stand up for ourselves we are complicit in our own oppression.

Up next in Part VI: The shape of anti-bullying legislation to come.

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