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DALLAS � Voters overwhelmingly approved adding a same-sex marriage ban to the Texas Constitution on Nov. 8, but that vote may not be the final word on the issue. Proposition 2, which defines marriage as a union between a man and a woman and prohibits state and local governments from creating or recognizing any legal status identical or similar to marriage, was one of seven amendments on the ballot of particular interest to lawyers. However, Proposition 2 is the one most likely to draw a challenge. Jerry Simoneaux Jr., immediate past chairman of the State Bar of Texas Sexual Orientation and Gender Identification Issues Section, says the second part of Proposition 2 is poorly written, and he believes it is unconstitutional. Simoneaux, a partner in Nechman, Simoneaux & Frye in Houston, says his firm is forming an ad hoc committee to study the amendment. “I think we will challenge it,” Simoneaux says. Proposition 2 supporter Kelly Shackelford, chief counsel for the Liberty Legal Institute, says anyone can file a suit, but that those who want to challenge the amendment “will lose very badly,” unless they come up with a credible argument. One concern, Simoneaux says, is the amendment’s prohibition against governmental entities recognizing a legal status “similar to” marriage. “In legal terms, the word “similar’ is not defined anywhere,” he says. “How similar does something have to be to be similar to marriage?” James Paulsen, a South Texas College of Law professor and expert on marital law, says most states that have passed constitutional amendments to ban same-sex marriage prohibit government from recognizing anything “substantially similar” to marriage. When the prohibition is against government recognizing anything similar to marriage, “that becomes impossibly vague,” Paulsen says. The first section of Proposition 2 defines marriage as a union between a man and a woman without considering other aspects of marriage, Paulsen says. However, he notes that a number of cases in Texas � including the Court of Criminal Appeals’ 1920 decision in Mercado v. State and the First District U.S. Court of Appeals’ 1987 decision in Harrington v. Harrington � say “marriage is a partnership.” He questions whether passage of the amendment means the state can no longer recognize business partnerships between a man and a woman. “Obviously, that is not what is intended, but it would be a very fair reading of the amendment,” Paulsen says. Simoneaux says that, among other concerns, Proposition 2 raises a First Amendment problem regarding the right to petition the government for redress of grievances. If an advocate for same-sex couples were to ask the state to offer domestic-partner benefits, the Legislature could point at this amendment as a reason for not considering that request, he says. To get the request for such benefits considered, Simoneaux says, same-sex couples would have to seek the support of a supermajority of the Legislature and more than 50 percent of voters for repealing the amendment. That would be impossible for “a politically unpopular group” to do, Simoneaux says. On May 12, U.S. District Court Judge Joseph Bataillon of Lincoln, Neb., struck down Nebraska’s constitutional amendment that banned same-sex marriage. Bataillon’s ruling in Citizens for Equal Protection v. Bruning deals in part with the plaintiffs’ argument that the amendment deprives same-sex couples of First Amendment rights, creating “a significant barrier to the plaintiffs’ right to petition or to participate in the political process.” The state appealed Bataillon’s decision to the Eighth Circuit U.S. Court of Appeals, which Shackelford predicts will side with the state. “It’s an inane decision,” Shackelford says. “I guarantee this guy will be reversed.” If the First Amendment argument were to stand, he says, no one could pass a constitutional amendment like this, he says. Mary Alice Robbins is a reporter with a Recorder affiliate based in Dallas.

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