In the media, discussions of same-sex marriage tend to be accompanied with pictures of men exchanging rings and short-haired women kissing. Public debate revolves chiefly on the morality of homosexuality itself. What this debate ignores is that marriage, at least as far as the state is concerned, is not a cultural or religious rite, but a contract by which two people agree to take legal responsibility for one another. On Tuesday, November 8, voters in Texas will decide whether to accept or reject Proposition 2, the proposed constitutional amendment that would ban same-sex marriages. The language of Proposition 2 is the broadest imaginable. Beyond defining marriage as “a union between one man and one woman,” it would prohibit the state from creating or recognizing any relationship “similar or identical to marriage”—read: civil unions—at any time in the future, putting gay couples and their families in permanent legal limbo.
Since 2003, Texas law has prohibited the state from recognizing marriage or marriage-like relationships between same-sex partners. But gay couples have evolved elaborate networks of legal documents giving themselves and their families some measure of security. These documents cannot offer the full protections of marriage, and are open to challenge by nosy officials and disapproving families. Still, they are better than nothing.
According to the House joint resolution that put the amendment on the ballot, its legislative intent is to allow same-sex couples to continue to “appoint guardians and arrange rights relating to hospital visitation, property, and the entitlement to proceeds of life insurance.” But even these narrow exceptions are not guaranteed. None of this language is included in the amendment itself; Texas judges are not obligated to consider legislative intent in interpreting constitutional law.
“Everything is at risk,” says Anne Wynne, Austin family law attorney and founder of the Atticus Circle, a group that advocates for the legal rights of gay couples and their families. “All the documents and contracts that gay couples have put together to protect themselves could come into question. The courts could say, ‘Whoops, looks like you’re trying to get married. That’s against the law.'”
Second-parent adoptions that give gay parents equal legal responsibility for their children could be nullified, as could the powers of attorney that allow same-sex couples to make medical and financial decisions on one another’s behalf. Public employers such as state agencies and state-run universities may not be able to offer domestic partner benefits to their employees. Wynne speculates that even private employers and insurance companies might deny benefits to same-sex couples, if they thought such action was necessary to comply with state law.
In states where voters have approved constitutional bans on same-sex marriages, the unintended consequences have already occurred. In Michigan, where such a ban was passed in November 2004, the attorney general has ruled that the state’s constitutional amendment prohibits public employers from offering domestic partner benefits to gay employees and their partners. (A Michigan county judge rejected that finding last month; Michigan’s attorney general is expected to appeal.) Two Ohio judges have reduced or dismissed domestic violence charges against heterosexuals who abused their unmarried partners, arguing that Ohio’s domestic violence statute can no longer be extended to recognize unmarried couples.
The proposed amendment will not make gay people straight, or stop them from falling in love and having children. What the amendment can do is make the lives of gay couples a bureaucratic hell, and plunge the state courts into a frenzy of civil suits, as the legal system attempts to sort out what constitutes a relationship “similar or identical to marriage.” There has never been anything like equality for gays in Texas, but it may soon be open season on them and their families, as the only right same-sex couples have ever enjoyed—the right to be left alone—is voted out of existence.
Kyre Osborn and Ellen Hobbs of Austin are the kind of couple who plan ahead. Before their wedding last April, Hobbs and Osborn were making plans to draw up the paperwork that would give them the closest possible approximation to legal marriage—medical and financial powers of attorney, wills, living wills, and burial directives. Because the fees to draw up these agreements can cost thousands of dollars, Hobbs and Osborn included them on their gift registry, forgoing china plates and fancy towels. “This was a little more important to us,” Osborn says.
Then, a few months before the wedding, Hobbs woke up in the middle of the night with stabbing pains in her chest. “I thought she was having a heart attack,” Osborn says. Osborn called 911, and Hobbs was rushed to the emergency room with what turned out to be a gall bladder attack. “They were very good about Kyre,” Hobbs says. “They put her as my partner on all the paperwork, but when it came right down to it, they asked for my family’s information, in case there were any medical decisions to be made. That wasn’t what I wanted. It didn’t feel safe.” Hobbs mother had been hospitalized with serious heart problems just a few days before. “The last thing I wanted was somebody calling my mother in the middle of the night and scaring her, when Kyre was right there.”
“It was nice that the hospital was gay-friendly,” Osborn adds. “But at the end of the day it didn’t mean anything legally. We couldn’t even pretend we were married. Who would believe us?”
The two women made sure that their medical powers of attorney were in order before Hobbs’ surgery. St. David’s Hospital, where Hobbs had the surgery done, accepted Osborn’s power of attorney, and let her spend the night in Hobbs’ room on a cot. Legal privileges like these, while they can’t provide every protection that heterosexual couples enjoy, have meant a lot to couples like Hobbs and Osborn. But they worry that if Proposition 2 passes, they will lose even these privileges.
Hobbs and Osborn say they’ve thought about leaving Texas if the amendment were to pass. “I’d definitely step up my out-of-state job search,” says Hobbs, a programmer for a video game production company. “I don’t want that. All of my family is here in Texas and I want to be near them. But I don’t think I can endanger my own family by staying.”
Hobbs points out the state is losing money by discriminating against people like her. When she looks at job prospects, she avoids companies whose corporate headquarters are located in Texas, because they tend not to provide benefits for unmarried partners. The company she works for currently is based in Washington, where state law requires businesses to offer benefits to all domestic partners. When Osborn was between jobs a year ago, Hobbs’ insurance covered her. (She has since found a job in Austin doing public relations work.) “It was great to have that,” Hobbs says. “If I ever started my own company—and I’m actually very good at my job, and respected in my field—it wouldn’t be in Texas. I’d want to be somewhere where I could offer benefits to everyone who deserved them, and know it wouldn’t be challenged. So they’re losing a resource in me.”
Above all, Hobbs and Osborn say the fact that the amendment is even up for a vote feeds a spirit of intolerance, and makes them uneasy. “I grew up in a little refinery town,” Hobbs says. “I always felt a little odd, but I felt safe. In the last few years, though, things have become so politically heated, people have become so outspoken and so angry, I don’t like to go home.”
In the meantime, they’ve set money aside to keep their powers of attorney and other legal agreements up-to-date. “We are probably luckier than most,” Osborn says. “But I wouldn’t want anyone to get the impression that you can sign some legal papers and make everything okay. There’s nothing we can do as gay people to approximate a legal married relationship. In November, all bets are off.”
When Tanya Voss came out 20 years ago, having children seemed like a far-fetched idea. “I just assumed it was something that wasn’t in the cards for me,” Voss says. “Sue thought differently about it.”
Voss met Sue Marriot at a Halloween party in 1988. They’ve been a couple ever since. Voss teaches in the social work department of the University of Texas; Marriot is in private practice as a therapist. The pair took turns carrying their two sons, now three and six years old. Each has legally adopted the other’s biological child. “Our eldest is our imp—creative, full of life. Our youngest is our old soul,” Voss says. “We’ve always been active for gay rights, but having kids really ups the ante. If we aren’t safe, they aren’t safe.”
Voss experienced complications during the birth of the couple’s second son. She and the baby spent several days in the natal intensive care unit. The nurses on duty during the week allowed Marriot to visit, but the weekend nurse refused to let her into Voss’s room. “It scared me, but it also brought out a mother bear feeling,” Voss says. “My response was, ‘Well, we have a second-parent adoption and I’d be happy to have our lawyer call you if you need more information.'” (A second-parent adoption is a legal procedure that allows a same-sex parent to adopt his or her partner’s biological or adoptive child without terminating the first parent’s legal status as a parent; the procedure is currently recognized in several Texas counties, including Travis County).
The nurse backed down and Marriot was allowed to come in, but to Voss the experience brought home how easily their family’s legitimacy was challenged. “We are dependent on the good graces of other people,” Voss says. “Even though we’ve taken all these steps, anybody can take it upon themselves to challenge us.”
The couple fear additional challenges if Proposition 2 passes in November—challenges not only to the second-parent adoption, but also to the legal documents that allow Voss and Marriot to make financial and medical decisions for each other, inherit each other’s property, and dispose of one another’s bodies after death.
Voss has been vigilant about keeping up with paperwork; she has no doubt how her family would respond if those decisions fell to them. “If something happened to me, my partner’s wishes wouldn’t even register with them,” Voss says.
Voss’s East Texas family opposes her relationship with Marriot on religious grounds. Since coming out 20 years ago, Voss has been back to visit just a handful of times. “It’s awful,” she says. “First no one will talk to me, then they won’t let me leave. All I have to do is sit in the back of the church and they all go insane.”
Voss’s sons have never met their grandparents. One of her most urgent fears is that her family would try to take custody of her youngest son in the event of her death. “Part of me thinks that they’ve shown so little interest that maybe they would just let it go,” she says. “My very real worry is that they would want to take him away and try to ‘save his soul’—tell him that his mom is going to hell.”
Voss and Marriot worry about the effect that discrimination will have on their children. “It’s hard on kids to see their parents without power,” Voss says. “They should be able to believe for a while that moms are powerful and can make everything okay. I don’t want to turn on the TV and have them see the president saying bad things about our family.”
The two women talked about moving to Canada if the amendment passes, but Voss says she wants to stay in Texas. “No one can tell me where to go,” Voss says. “My family’s been in Texas since before anyone can remember. I love Texas, and I’m stubborn.”
Matthew Wood and Kiel Reeves met in 1997, while attending the University of New Mexico. While serving as president of the Lamda Student Association, a social group for gay and lesbian university students, Wood tried to organize a group outing to a rodeo sponsored by the New Mexico Gay Rodeo Association. Reeves, a pre-med student from the Cheyenne River Sioux Reservation in South Dakota, was the only group member who came along. “The outing turned into kind of a date,” Woods says. “Then things just went from there.”
After Wood graduated from UNM, he moved to Houston. Six months later, Reeves joined him. “It was the obvious thing to do,” Reeves says. “That was where I wanted to be.” Today, Wood is an editor for Argus Media, which publishes price information and market analysis for the energy industry. Reeves is a graduate student in pharmacy at the University of Houston. After eight years together, Reeves and Wood say they consider themselves married.
Three years ago, the couple began to work with Texas’ Child Protective Services agency to adopt a child. “It was incredibly frustrating,” Wood says. “They shuffled us around and lost track of us.” CPS assigned the couple a case manager who didn’t call them or return calls for six months. They later found out that she had been ill, and her case load had never been reassigned. Then there was the outright discrimination. “They told us it would be hard to find a judge in Harris County who would make a placement with us,” Wood says. “Sometimes the case managers working with the kids wouldn’t want to place with a gay couple. There was an assumption that there needed to be a woman.”
Unlike other couples interviewed for this article, Wood and Reeves have not made out wills and powers of attorney. “Frankly, we’ve never been challenged,” Wood says. “We’ve been quite casual about it. If this amendment passed, we would have to be much less casual.”
But if the amendment passes, obtaining and enforcing those agreements is likely to become more difficult. “It’s a big question mark,” Reeves says. “Will there be problems with our house, with the cars that we own? What will happen if one of us gets sick?”
But the couple’s biggest worry is that their plans
to adopt will be put permanently on hold. After t
ree years of trying to work through CPS, Reeves and Wood have now contacted a private agency. Last month, their home was finally approved for the placement of foster children. Though their experience has taught them to be cautious, they are hopeful that they may be on track to adopt a child together early next year. That is, if they can still pursue a second-parent adoption. “This constitutional proposal has us concerned about how adoptions will play out,” Wood says. “Will two men adopting the same child in some way ‘simulate’ marriage?”
Wood and Reeves have talked about leaving Texas if Proposition 2 passes, but Wood, who was born and raised in College Station, wants to stay near his family in Texas. “My parents are getting older, and I want to be here to take care of them,” Wood says. “I was born here. I don’t want to be forced out.”
“There’s no doubt in my mind that eventually gay marriage will be legal,” Woods says. “But the fight could be very deep. There could be some dark times. We wonder if we’re near the end of them, or at the beginning.”
Emily Pyle is a writer in Austin.
The Fight Against Nonsense (sidebar)
After more than 20 years of gay rights activism and 10 years in the Texas House of Representatives, Glen Maxey can still get red in the face when he talks about the proposed amendment that would ban gay marriage. “It’s sick,” says Maxey, who is openly gay and who represented South Austin in the Texas House from 1991 to 2001. “It’s the use of a volatile issue to distract the public from everything that the legislature cannot and will not do. It’s an organizing tool—a bunch of cynics using well-meaning Texans for their political gain.”
Despite the family-values rhetoric invoked by the amendments supporters, the issue is politics, not morals, Maxey says. “I was talking to people while this was coming up for a vote, and it was clear to me that nobody was doing any soul-searching,” he says. “This didn’t come from any moral base. A yes vote seemed like the politically safe thing to do.”
As soon as the House passed the joint resolution that put Proposition 2 on November’s ballot, Maxey began organizing No Nonsense in November—a non-profit focused on defeating the amendment. According to poll data gathered by No Nonsense, the proposition’s broad ban on any and all legal protections for gay couples doesn’t square with what most Texans say they want. “The overwhelming majority of people in the state believe that discrimination is wrong,” Maxey says. “They’re not in favor of denying rights to gay couples, but they don’t understand that that’s exactly what this amendment does. They think the amendment is just about defining the word ‘marriage.’ Most people don’t really understand what marriage is, from a legal standpoint.”
Much of No Nonsense’s efforts have been to educate the voting public on what marriage is, and what it would mean to deny recognition of marriage—or “any relationship similar or identical to marriage,” as the language of the amendment goes—to same-sex couples. “The unintended consequences will be huge,” Maxey says. “Nobody on earth knows right now what constitutes a ‘relationship similar or identical to marriage.'” To reach votes, No Nonsense, with help from the Human Rights Campaign, and a network of other gay rights and civil rights organization, has employed classic outreach methods like rallies and voter drives. Community groups have organized opposition to the amendment via new avenues of political action that developed during the last election—house parties, e-mail drives, and meet-ups.
Maxey is optimistic, even in a state as solidly red as this one. Voter turnout for constitutional elections is historically low, he points out. With most Texans confused or on the fence regarding gay marriage, the election is likely to come down to hardcore opponents of gay marriage versus hardcore gay rights supporters. A few thousand votes may be enough to defeat the amendment, Maxey says, if No Nonsense and other groups can get those voters to the polls. “I think it’s quite possible that this could be defeated,” Maxey says. “What a great thing it would be for Texans to say ‘enough is enough.'”
Ultimately, Maxey says, debate over gay marriage is good for same-sex families. Even as the controversy over gay marriage has heated up in recent years, more and more Americans say they believe gay couples should be legally protected. In November 2003, the month the Supreme Court of Massachusetts overturned the state’s gay marriage ban, just 30 percent of those polled nationally by the Pew Research Center supported gay couples’ right to marry; 62 percent opposed gay marriage. By last July, support has risen to 36 percent; opposition to gay marriage had shrunk to 53 percent.
“As awareness of gay marriage increases, support for it is growing,” Maxey says. “Will it be enough to defeat the amendment in November? No one knows. As long as this is a silent issue, we lose. As soon as people have to feel their bigotry, face it, see it, they start to change.”—EP