Gay marriage ban draft stirs dispute in Texas

AUSTIN, Texas -- Texas could be headed into uncharted territory with the proposed broad gay marriage ban on the Nov. 8 ballot, legal specialists say.

Proponents and critics dispute whether the language would jeopardize partnership benefits and legal arrangements that gay couples make on everything ranging from property to end-of-life decisions.

And the experience of other states provides little guidance because the proposed amendment in Texas is broader and less specific than many -- and courts elsewhere are in the early stages of evaluating laws and amendments defining marriage.

Gay rights activists have been heartened by recent court rulings in Nebraska and Michigan. But many worry that in the hands of conservative Texas judges and citizens, the amendment could lead to a rollback of rights and benefits for gay couples.

''The people who oppose equal rights for gay and lesbian people will interpret these in the most harmful way possible," said Ken Upton, Southwest regional attorney for the gay rights group Lambda Legal. ''Will it be successful? You have to have a crystal ball."

Proponents say they have no thoughts of punishing gays or nullifying their contracts.

Kelly Shackelford, a conservative activist who helped lawmakers draft the amendment last spring, said traditionalists are on defense in this fight.

Amendment supporters want to inoculate Texas from rulings by ''activist judges" and make the state's marriage ban impervious to what Shackelford called ''shenanigans" by legislators or other bodies. He cited California, where, in 2000, voters approved a law defining marriage as ''between a man and a woman," and then last year the state's Legislature enacted the nation's most comprehensive domestic partnership law.

''If the people pass something, we don't want an end run around it," said Shackelford, president of the Free Market Foundation, a group that says it is dedicated to strengthening families.

Opponents are depicting the amendment as a Pandora's box that, because of purported drafting errors, could prompt a court to wipe out heterosexual marriage.

The suggestion brought swift denunciations from supporters, including Governor Rick Perry.

As he cast his early ballot this week, the Republican governor said the amendment ''will pass overwhelmingly," despite what he called opponents' efforts to confuse voters.

''I have great faith that the voters are rather wise and quite intellectually capable to figure out where there might be some misinformation," he said.

Legal specialists say it is hard to handicap what courts would do with the amendment, known as Proposition 2, if it passes. But many see the measure's second sentence as a source of contention.

It says the state and local governments ''may not create or recognize any legal status identical or similar to marriage." The language is vague enough that it will be challenged, said Andrew Koppelman, a professor of law and political science at Northwestern University who is writing a book on legal struggles over gay marriage. ''This sentence will certainly generate litigation," he said. ''It is a drafting catastrophe. It is not even grammatical. And its meaning and coverage are extraordinarily obscure."

Koppelman, who said he favors gay marriage rights but takes no part in campaigns, added he would hate to be a Texas judge trying to decide what is similar to marriage. The amendment, he said, ''might prohibit all domestic partnerships. It might prohibit no domestic partnerships. It might prohibit some. . . . It's impossible to tell."

Shackelford said predictions of harm to existing rights are exaggerated. ''It's really not that complicated," he said.

He acknowledged that the provision might be invoked to eliminate domestic partner benefits given to employees of the City of Dallas and Travis County. But he said he sees no danger to wills, hospital visitation arrangements, and other legal precautions gay couples often take.

''There's a lawsuit here or there in most places," he said. ''Most places, there's not a single lawsuit."