The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

Gay Marriage Ban? Don’t Explain.

As long as we’re talking about the clarity (or lack thereof) of various anti-gay marriage amendments, it’s worth talking about the dustup over Wisconsin’s proposed amendment. Althouse, point to an article concerning the Wisconsin attorney general’s explanation of the amendment, and how supporters were upset that she explained it at all.

Wisconsin Attorney General Peg Lautenschlager sent two ballot explanations of the gay marriage and death penalty referendums to the state Elections Board Friday, providing the plain English translation that voters will use when they weigh in on the hot-button issues in November.

… Meanwhile, opponents of the proposed constitutional ban on gay marriage and civil unions praised Lautenschlager’s reading of the amendment question for pointing out its uncertain effect on joint benefits for unmarried couples. Supporters said it reflected Lautenschlager’s personal bias against the proposal.

State law requires Lautenschlager to produce the explanations, which matter both because they might influence voters and because they could play a role in later court decisions that involve the intent of the proposal.

… State law limits marriage to a husband and wife. The proposed amendment would constitutionally limit marriage to a man and a woman and ban civil unions and other arrangements for unmarried couples that are “substantially similar” to marriage.

Julaine Appling, who’s heading up the Vote Yes for Marriage coalition supporting the amendment, objected to Lautenschlager’s explanation of the “substantially similar” clause of the measure.

The attorney general’s explanation tells voters that it would be up to courts or the Legislature to determine whether that second clause would affect so- called domestic partner benefits between same-sex and other unmarried couples. Appling said only full-fledged civil unions or “look-alike” marriages would be affected by the measure.

As with Virginia, why should gays in Wisconsin be assured by Julaine Appling’s explanation? Especially when the attorney general’s explanation doesn’t say that the amendment will or won’t affect domestic partner benefits and other legal arrangements, but that it would be left up to the courts and the legislature? The courts are already getting involved in dealing with these over-reaching anti-gay amendments.

Georgia’s own amendment, which also attempted to prohibit other legal arrangements, was tossed out in court and the part of the judge’s argument focused on the attempt to rule out any form of legal recognition for same-sex couples, as well as saying that the amendment’s wording violated regulations intended to prevent “voter confusion.”

“People who believe marriages between men and women should have a unique and privileged place in our society may also believe that same-sex relationships should have some place — although not marriage,” she wrote. “The single-subject rule protects the right of those people to hold both views and reflect both judgments by their vote.”

And if it isn’t clear what they’re voting for, people who believe that same-sex couples deserve some form of legal recognition, rights and protections, might end up voting for a law that prohibits such. Especially if they take the word of anti-gay amendment proponents. What’s more they might end up voting for something that ends up hurting heterosexuals as well, like the over-reaching Ohio amendment that a judge said invalidates domestic violence protections for non-married heterosexual couples.

If these hastily-written, hateful amendment have unintended consequences (or are they unintended?) for heterosexuals, why should gay people assume there aren’t equally bad unintended (or intended?) effects that could be visited upon their families? Again, why wait for a test case? Why wait to be a test case, especially since by then the damage is already done no matter what the outcome?

Given the stakes, why take stay and take your chances?

21 Comments

  1. On another blog (Independent Gay Forum) there was a note that Winconsin’s existing law provides for penalties of $10,000 fine & 9 months in jail for going out of state to circumvent the Same-Sex Marriage Ban. Going to Canda or Vermont could land one in jail…

  2. Gay Marriage Ban? Don’t Explain.

    Terrance, can we really call an expectation of equal gender representation in marriage a “gay marriage ban”? Perhaps this explaination from James Antle will help.

    Others suggested the amendment would “ban gay unions”. Such wording makes it sound like an otherwise permissible activity was being prohibited, lending plausibility to those pundits who would have us believe the FMA was concocted as Karl Rove rubbed his hands together and chanted, “Arise theocracy, arise!”

    The problem with describing what opponents of same-sex marriage would like to do in these terms is that this framing of the issue – while seemingly neutral and often accepted uncritically by social conservatives – is itself prejudicial. Those who would believe same-sex marriage is not only a non-oxymoronic logical possibility but also a constitutional necessity argue that people are presently being excluded from marriage and what they are seeking amounts to opening marriage up to these excluded people.

    This proposition, for which sound arguments can be made, is certainly one way of looking at it. But it happens to not be the way those of us who favor traditional marriage look at it. Abandoning the idea of marriage as a union between one man and one woman is not merely opening marriage up to a new group of people; it amounts to fundamentally changing the definition of marriage.

    Similarly, what we seek is not so much to “ban” anything as to preserve the existing, traditional definition of marriage. This is a debate between those who want to change what marriage means and those who believe there is value in keeping it the way it is.

    At first this may sound like a trivial word game, but the distinction is more than semantic. By accepting the prevailing media characterization of the opposition to gay marriage – or rather, the support for the preservation of traditional marriage – we allow our friends and colleagues on the other side of the debate to steal a couple bases.

    First, this “ban” on gay marriage sounds like something new, something novel, rather than merely the preservation of the existing state of affairs. Second, it allows the issue to be easily conflated with coercive measures like sodomy laws that don’t necessarily have anything to do with marriage. Columnist James Lileks remarked on his blog that “banning gay unions” makes it sound “(a)s if the government was going to find gay couples, crowbar them apart and make them live alone in dismal one-room apartments.”

    Language is important in politics. The words that are used define a debate, spell out one’s message and communicate that message to the electorate at large. The side that most effectively does the defining is often the one that prevails in the public square.

    Another site is more forthright on challenging the terminology:

    I see no mention of the word “Gay” nor “homosexual” nor any other word meaning essentially the same thing.

    I see no mention of the word “Ban” nor “prohibition” nor any other word suggesting that a particular practice is being “outlawed.”

    If the Amendment is indeed a “Ban” on Gay Marriage shouldn’t’t the text specifically name the alleged prohibited act (gay marriage, same sex marriage, man and man marriage, or some similar phrase)? And if this is a “Ban” shouldn’t’t we see some reference to penalties for violating the Ban?

    For example, most of us are aware that a “Ban” against “Driving under the Influence” exists and we are aware there are both fines and imprisonment for violating the Ban. Most of know there is a “Ban” against “adults having sex with a minor child” and that being caught violating this ban will result in imprisonment. On a milder level of offense, most of us are well aware of “smoking bans” in certain public places. In short, a “Ban” creates either a misdemeanor or a crime; it forbids a certain named act and backs up that prohibition with some sort of penalty for refusing to obey that Ban.

    Whatever are the arguments to oppose the Marriage Amendment, depicting it as a “Ban Against Gay Marriage” is a gross distortion of the facts. That this gross distortion and fiction has been adopted by everyday news media is testimony to the sophistication and influence of Gay Advocacy groups (who do, by the way, have rational reasons to oppose the Amendment). Gay Advocacy groups understand that if they succeed in selling a Big Lie, they don’t need to worry about arguing over all the particulars pro’s and con’s of this Amendment.

    Especially when the attorney general’s explanation doesn’t say that the amendment will or won’t affect domestic partner benefits and other legal arrangements, but that it would be left up to the courts and the legislature?

    Probably because it won’t. It would take some reasoning that is pretty strained, much like the reasoning I’ve seen behind the domistic violence argument. You’ve been a very rational and reasonable person to discuss this matter with. But if there has been one fault, and I’m not saying there is one, but if there was one it would be erring on the side of paranoia.

    Civil unions and DP’s can, but don’t neccissarily need to, amount to a legislative end-around. A friend of mine puts this mathematically while discussing simular legislation in another state:

    The contradicition is clear from the math:
    1. … (Marriage => !Same Sex) Marriage is not Same-sex
    2. … (CU => Same Sex) Civil Union is Same-sex
    3. … (CU == Marriage) Civil Union is the same as Marriage

    It is as if the legislatures are telling their constituents, “We understand. You voters don’t want same-sex unions to be marriages. Got it. … … But you didn’t say you didn’t want civilunions to be marriages!” And so the subversion continues.

    Yet no matter how it is sliced, renamed, obfuscated or camouflaged, granting any treatment to any group based on treatments applied to any other group is wrong. One does not give the whole family chemotherapy when a child has leukemia. Not only does it deplete your resources and your ability to deal with the real concern, the child with leukemia, but it harms the healthy. One does not grant welfare checks to the wealthy, nor grant handicapped parking to the healthy.

    That is probably just another way of saying what someone else sayed before

    On the other side of the coin, you could create a new leagal status that affords all the legal rights and protections of marriage, but has a different name. At that point, I’m not sure what the purpose is, beyond semantically reserving the term “marriage” for heterosexual use exclusively. Seems a bit silly to me.

    That is specifically what is being denied. If neutering marriage is wrong in and of itself, as I’ve argued, then creating a neutered marriage substitute that is explicitely tied to marriage can’t be good. What is wrong is the explicit tie. And that is what the wording prevents.

    But, what it does not prevent is creating a new institution and letting the democratic process decide its relevance and benefit on its own. I’m up for the experiment, and Michigan recently ruled for its own state that such wording does not prohibit this experiment. It is, to my knowledge, the only ruling specifically on whether or not such an experiment is prohibited.

    Georgia, btw, recently over-ruled the decision you referenced in this article. (I know that news article calls it a same-sex marriage ban too. But at least the article does not rely on problematic reasoning based on flaws in that premise).

    Br. Katana,

    there was a note that Winconsin’s existing law provides for penalties of $10,000 fine & 9 months in jail for going out of state to circumvent the Same-Sex Marriage Ban.

    This doesn’t even make sense. I’m looking at it and while I hate to make people’s arguments for them, the I can only apply my own imagination and surmise that law is if people perpetuate their marriage as real in the state and thus are committing marriage fraud.

    But look, if there is going to be such inter-state confusion on this matter and such promise of penalty, then we really do need the FMA.

  3. then we really do need the FMA.

    And if it passes, you’ll tell me it’s for my own good….

  4. you’ll tell me it’s for my own good

    Thanks for the giggles.

    But seriously, the thrust of your debate is too myopic. And that is a liability. I have no idea who you are near as much as you do. And that is the trap of identity politics.

    Look at it this way. You define yourself by your sexuality, and who’s to stop you? Who’s to say that is a bad thing? It all subjective. We have different lifestyles in that regard but I don’t define myself by my sexuality. I don’t put “heterosexual” on my website, and I don’t go around wearing that on my sleave. People no more define themselves as heterosexual than they describe themselves as gentile or as club non-members. I am married, which means I am committed to taking care of a spouse and the children we bring into this world. To make marriage mean anything less makes me mean less, and makes our children mean less.

    So you can’t tell me, Terrance, that you are being oppressed or denied opportunities here because marriage focuses on a situation different than your own. Its like saying SUV’s are not fuel efficient enough, and that sub-compact cars don’t have enough carrying capacity. One-size suits all is simply fallacious.

    You aren’t coming across like a victim to me, just someone who has a hard time seeing beyond his own pathology. And that potentially could victimize a number of people who really are defenseless.

  5. Funny. I'm married in all but the legal sense, committed to my partner and the children we are raising together.

    How would my family having the same rights and protections as your family tangibly harm you and yours? What would be immediately taken away from you in terms of your legal rights and protections? What right's and protections would you suddely lose?

    Would your marriage license be instantly invalidated?

    Would your legal relationship to your wife no longer exist? 

    Would you lose the right to, say, hospital visitation and to make medical decisions for one another?

    Would you lose the right to carry your wife on your health insurance, or vice versa?

    Would you lose the right to spousal privilege?

    Would you lose the right to family leave? (As defined and federally mandated, by the way, in the Family Leave Act, which defines spouse as "husband or wife", neither of which same-sex partners would legally have.)

    Would you lose the right to inherit one another's pensions or social security?

    Which of the numerous rights and protections afforded married couples would be taken away from you?

    I understand it would probably offend your sense of morality on some leve, if my partner and I were to able to legally marry and have the same rights and protections as you and  your family. I gather that it would make the world or society a disordered place in your view. But tell me what tangible things, what identifiable legal rights and protections would you lose? 

    And what do you stand to gain or at least retain in the status quo? What do you stand to gain if my family lacks the rights and protections mentioned above and previously? More to the point, how does it benefit society that we lack and continue to lack those rights and protections?

    How is it good that we are without them? 

    And I know that you will argue that you're not saying we should be without them. But you seem to be, rhetorically at least, closing the door to most of what might least to some kind of equality. Or at least the most apparently achievable and comprehensive ones. You've said no to marriage. You seem to be saying no to civil unions and domestic patnership by supporting laws and amendments that would prohibit their legal recognition. The only routes you seem to leave open are the most obsure or the most unlikely to be achieved: reciprocal beneficiaries and/or complete socio/economic overhaul.

    I had to resort to googling to figure out what you referring to as "RB's" and then more googling to see how Reciprocal Beneficiaries compare to marriage, civil unions and domestic partnership. At first glace, it doesn't appear to approach marriage equality. (Which leads me to think that the better question to ask might be "What rights shouldn't same-sex couples have?") My only guess is that when you say you support equality you mean you support making same-sex couples equal to other unmarried couples. At the very least, we're talking about entirely different things. 

    As I said above, perhaps the best way for me to understand where you're coming from is to reframe my question. What rights and protections should my family not have?

  6. RB is explicitly not for the marriageable twosomes. It does not depend on the sexual identity filter that would mislabel the homosexed pairing as “marriage”.

    So, sure, RB is not meant to be elevated on par with marital status. It coexists with the preferential status accorded the social institution of marriage.

    I think that SSMers tend to propose a new idealized version of the homosexed relationship but then mistakenly presume that this new prototype for the man-only, or the woman-only, form is the new ideal for the both-sexed form.

    SSM is not so much about redefining marriage, as replacing marriage, with state recognition — and elevation — something else.

    What would be the purpose of state elevation of the one-sex-short arrangement, even if that new status merely coexisted with marital status?

  7. As I said above, perhaps the best way for me to understand where you’re coming from is to reframe my question. What rights and protections should my family not have?

    Well, obviously you don’t see the myopic nature of your argument as a problem. That was already answered, with no challenge from yourself. For fun I summarized the answer here too.

    I’m married in all but the legal sense, committed to my partner and the children we are raising together.

    Being committed to a partner and raising children is not what a marriage is. You know that, I don’t have to explain the definition of “marriage” to you.

    How would my family having the same rights and protections as your family tangibly harm you and yours?

    So how many times now have I said, I’ve never been against you and your situation being recognized and given benefits. To ask what I would object to you recieving is answered. The problem is not that I wish to deny you anything, but that your argument is flawed and the change you wish to enact in marriage is wrong on many humanitarian levels. Again, you’ve not answered or challenged that point.

    That so many are willing to extend benefits is good news. And you should be open to even better news — you don’t even have to neuter marriage for any benefit you already listed. Which is something you should be happy to hear, because neutering marriage is a bad idea in and of itself. The way it treats procreation as a industry of paying parents to sever all ties with children, it fraudulently presents homosexuality as a handicap for disability benefits.

    I guess after all this time I still have to say this victimization routine isn’t washing, plain and simple. So much drah-mah.

    Find a way to get the benefits without replacing marriage with some poorly and hastily created immitation.

    Also, I have endeavored to point out to you that “equality” is supposed to be an argument. You keep weilding it like some password to goodies. Just say it at the right time to the right person, and you’ll be set up. I’m here to tell you that you need to look at your argument with a much more discerning eye and find something more compelling.

    Equality argumentation doesn’t work the way you keep attempting it. It never has. I can demand my SUV to have equality with motorcycles zooming up and down the carpool lanes with just one occupant. I can demand equality my pool have equality with wetlands and get protection and money to maintain it. I can demand equality for my dog, who I consider to be part of the family, to be put on my health insurance plan. I can demand my company be given the same breaks as a non-profit organization, after all think of the employees it would benefit!

    No. Even more striking, your argument is more akin to demanding a school exclusive to an ethnic origin be considered equal to every other mandated school of integration. What is the difference between your argument and the all-white school must get public funds, think of the children (or think of your child). Your argument would continue to be mirrored in the question, how would that hurt or take away from other public schools?

    When you finally take a good look at your position you will find that it is the same as the segregated school in its claim for equality. Its not equality of people, its equality of some entity made up of people. And when you look at the entity and purpose of the creation of that entity it is far different, and the difference is what makes people stand up and take notice. Its that difference that society makes the judgement on and not the people in it.

    So, let me help you find more to your argument. Answer for me the question Chairm left in the discussion earlier about benefits.

  8. You mean this?

    Why would the State create, or maintain, a legal relationship that is elevated, and preferred, above other private relationships?

    I’ve already answered it, though probably not in a way that would satisfy you. Which basically seems to sum up this whole conversation thus far, leading my back to my earlier suspicion that we really have precious little to say to each other. That’s part of the reason I bumped our previous conversation out of the comments and into it’s own post.

    In order to find common ground either I have to accept your frame or you have to accept ime, or one of us has to compromise something. If I make the compromise, according to what you’ve said thus far, I have to accept being less than equal (again, we’re talking about two different things when we each use that term). If you’re the one who compromises then, based on what you’ve said, the very fabric of society must be torn asunder.

    So, from what I can see, we’re at an impasse. To proceed from here, one of us has to conceed something we’re not willing to conceed. Where to from here?

    You’ve said (among other things) that you’re in suppoort of equality. You’ve made it clear that you don’t mean equality with married heterosexuals, but with unmarried heterosexuals. (Of course, the inequality is inherent because under any scenario you suggest, heterosexuals not only have the option of various alternatives like civil unions, domestic partnerships and “RB’s,” but they also and always have the option to marry provided they find an opposite sex partner who also wants to marry them.)

    (On the issue of equality, the automotive analogy doesn’t make sense to me. If you have an SUV and I have a hatchback, they may have diffent characteristics, but they’re both cars, they both need the same kind of fuel, and both have to be operated in accordance with the same traffic laws, etc. I’m not asking a hatchback to be and SUV. I’m asking that the same rules that apply to an SUV apply to a hatchback.)

    You’ve touted “RB’s” as an answer that would offer some rights and protections, but that would not be equal to marriage. Thus it would have to exclude some of the rights and protections afforded married couples. I’m asking which ones. I haven’t been able to get much more of an answer than “presumed paternity,” before returning to talk of “neutering marriage.”

    I ask for concrete answers. What rights should be included/excluded where same-sex couples are concerned? Name them. What do you think it should include? Not include? Until we can talk in concrete terms about what it means and what it confers, I can’t accept or reject it because I don’t know how close it is or isn’t to what I’m asking for. It might be enough. But I don’t know what you mean by it until I get some concrete answers to my questions. Thus far, I’ve heard little.

    My experience, in 20 years of working for social change on various issues, has been thus far that there are generally three kinds of people one deals with:

    • The people who are already on your side.
    • The people who could be on your side if persuaded.
    • The people who will never be on your side and won’t be persuaded.

    You need to maintain dialogue with the first group in order to shore up support. You need to maintain dialogue with the second group in order to build support.

    The third group? Talking to them might be beneficial, if only in the sense of knowing what you’re up against. But beyond that point, it only serves to divert time and energies away from talking to the first two groups; which might actually get you somewhere.

  9. Wisconsin should pay close attention to the experience in Michigan. The governor there at first refused to allow the proposed amendment on the ballot because it was vague, overbroad, and might be construed to prohibit other things than same-sex marriage, for example, domestic partner benefits. After voluminous reassurances from conservatives that no one understood it that way, she allowed it on the ballot, and it passed. Immediately afterward, the Republican attorney general issued an opinion that because of the amendment, the state could no longer pay domestic partner benefits to partners of same sex couples. And one of the big anti-gay organization from out of state brought a law suit in some city, Kalamazoo, I think, to stop existing benefits to same sex partners.

    The obvious lesson is that the people pushing the amendments are anti-gay about everything, and they will push for the most extreme interpretation of the amendment once it is passed. They don’t mind lying to trick voters into giving their support.

    One clarifying point about Georgia – The amendment there was tossed out solely on the basis of dealing with more than one issue. The judge said she did not address the specific content of the amendment at all. Of course the Georgia Supreme Court overruled the lower court, because the judges there are up for election in November.

  10. I’ve already answered it, though probably not in a way that would satisfy you.

    Oh, try me. I would hate to have gone through this whole conversation and missed your answer. Could you at least cut and paste your answer below?

    I have to accept being less than equal.

    You have to accept that you are already equal, and that your special pleading to be (as one might say) more equal than everyone else is unacceptable. It’s just life. Your plea for equality is fallacious and, honestly, a slap in the face of the equality movements in the past.

    But I guess you can’t accept that, can you. You have your eye on a prize and everyone else be punished so you can have it.

    You’ve made it clear that you don’t mean equality with married heterosexuals, but with unmarried heterosexuals.

    Equality with every mutually dependant relationship that might be raising children. Marriage has additional responsibility and encouragement for parents to raise their own children wherever possible, but you know that already.

    but they also and always have the option to marry provided they find an opposite sex partner who also wants to marry them.

    And you don’t? I’m sorry but that is equality because you do. You want the government to consider you differently than everyone else in that situation because of your sexual orientation, that is a special pleading not equality.

    Also, DP’s and CU’s are not available to heterosexual relationships. Well, DP’s in California are for elderly heterosexual couples, but that is not everyone as a classification.

    Thus it would have to exclude some of the rights and protections afforded married couples.

    It also might have some rights and protections that married couples don’t. You keep telling me how little faith you have in the democratic process when you pre-emtively proclaim this effort for your sake to be a failure.

    What rights should be included/excluded where same-sex couples are concerned? Name them.

    Oh my, and you say that with such dissapointment and so stern. Yet the answer has been provided three times now with no reply from yourself. No problems, no further questions, no anything. You just keep repeating it, which is nothing more than ignoring the answer. Funny, really. I can’t help but wonder, you like the question more than the answer. You just keep asking it, and I don’t know why. But that isn’t a fault of my argument.

    I even answered every one of your rights that you said you were after. I even pointed out that you don’t have to neuter marriage to get them. I’ve said I have no problem with them, and have attempted to help you make a valid claim (as in the claim you are making now is obviously fallacious) to get them.

    But here is what I find the most perculiar…

    You talk in such vague and abstract terms of impasse as if being unable to convince me is somehow a personality problem and not a problem in argumentation. You reference people in groups of accepting, but not anything about the argument at hand. This leads me to believe you aren’t attempting dialogue, you are making demands. And when those demands are scrutinized you claim impasse.

    I can’t emphasize this enough, you have to look at your own argument. You have to be understanding. You have to look at this situation circumspectly beyond your own drive for petty demands. Because if you can’t then that is a personality problem, and people who are looking to understand the situation will see that. You may be able to fool some of the people some of the time, but not everyone all of the time. But then, thats probably what you just said to me.

  11. on lawn calling terrance myopic and vague….that’s funny!

    you know, i tried to make it through on lawn’s posts but they made me want to go to sleep. Gays and lesbians do not have the same rights as straights in this country. Period. They have less rights than you and your wife do. I don’t know how one could state it more plainly. And no boring 10 paragraph, snotty ass, vague myopic rant about learning to accept being less than (because that is really what you’re demanding) is going to make it more complicated than that.

    When you started comparing people’s equal civil rights to SUVs and motorcycles (like modes of transportation, we are all different ——so some should expect fewer rights?!? wtf?) I had a nice long laugh. Ahhh, the convoluted ramblings of entitlement.

  12. When will somebody finally put up a ballot initiative to ban ballot initiatives that target minority groups? Our so-called Gay “leadership” should have done this long ago. It is the height of injustice to allow people who have no understanding of me and who, for the most part, have been raised to detest my kind to determine what citizenship rights I should and should not have.

  13. So here’s a challenge to Terrance: do one better.

    The trouble here is that language in a state constitutional amendment is always going to have a bit of wiggle room in it. But these things are proposed after a great deal of work on the language. So if you really think that the language proposed puts payments of private benefits to same sex couples at risk, propose language that at the same time:
    a) bans–unambiguously–civil unions (by that or any other name) and yet
    b) puts your fears for private benefits to same sex couples at ease.

    The fact is, no such language is likely to be forthcoming (nor would the groups that are bewailing these amendments propose any). After all, it’s far better to complain about the wording after the text is written in order to try to defeat the substantive proposal.

    The fact remains that any court interpretation of either amendment to ban private contractual relationships is vanishingly small. The legal arguments to this effect are frankly laughable, which is why you don’t see them quoted anywhere at any sort of length.

  14. Why would gay people, or anyone else who opposes these amendments, propose language that bans civil unions? Why would we want to ban civil unions?

  15. It is the height of injustice to allow people who have no understanding of me and who, for the most part, have been raised to detest my kind to determine what citizenship rights I should and should not have.

    Well, with the courts being undermined as a route for minorities to seek justice, I believe we are evolving into a system of absolute majority rule. We are basically embracing the idea that might (in this case, might in numbers; but in other cases it might encompass, say, economic or military might) equals right; even if the will of the majority is the exact opposite of justice.

  16. Keri,

    Thank you for your post. You are probably taking a more direct, but less tactful approach to this than Terrance. I believe you said at least three times words to the effect “Don’t listen to reason, listen to my dictums!”. I’ll once again ask people to treat this with not only an open mind, but consider people who are other than yourselves. You should be looking much more circumspectly at people’s human rights than you are currently.

    But to debunk your dictums:

    Gays and lesbians do not have the same rights as straights in this country. Period.

    False. You’ve given one of Op-Ed’s already debunked FAQ’s

    When you started comparing people’s equal civil rights

    Ibid

    Terrance,

    Why would gay people, or anyone else who opposes these amendments, propose language that bans civil unions? Why would we want to ban civil unions?

    I believe that reasoning was given above. The arguments were quoted from other sources, and one of the main arguments against CU’s was provided by yourself.

    Honestly, I don’t know anyone who likes the idea of CU’s. The first attempted constitutional ammendment re-affirming equality in the gender representation of marriage in Massachusetts went down in flames because both sides of the issue didn’t want CU’s. The Goodridge decision gives reasoning on why CU’s are a bad idea also based on the notion that seperate but equal isn’t really equal.

  17. On Lawn – you are a jokester! You take all of the qualities you know you are displaying and you accuse others of displaying them. Frustrating and at times funny, but not forthright.

    Be more open-minded, you say. Ha!

    You are myopic and make dictums and I am reasoned, you say. Double Ha!

    Gays and lesbians do not have the same rights as straights in this country. Period.

    Not False. True. Gay couples are not allowed to marry. Straight couples are. Straight couples have access to 1,138 rights that gay couples are routinely denied.

  18. Why would gay people, or anyone else who opposes these amendments, propose language that bans civil unions? Why would we want to ban civil unions?

    Terrance:

    Because an intellectually consistent argument is to say: “The language as presented bans not only civil unions but private contracts. If it didn’t ban such contracts, it would read as follows….”

    This then presents one’s opponent with an option: keep the existing language and argue that your language is wrong (or for some reason too weak) or to adopt it and proceed to debate the merits of the issue (should marriage and civil unions be banned).

    The trouble is this: whenever a DOMA (or such) is put forth, whatever the language, there is always a hue and cry that it will have dramatic and far-reaching effects.* But when such laws are then enforced, the parade of horribles never quite comes to pass, which means that the next cry seems to be just what I’ve been making it out to be above: much ado over nothing.

    *The truth is, it probably could have far-reaching effects, but not in the way that gay marriage proponents expect. One part of a law review article I’m writing at the moment focuses on precisely the fact that gay marriage proponents aim their guns at things that probably aren’t problems while ignoring actual effects on the law that DOMAs should have (and that are problems in themselves).

  19. I'm at a loss as to just how intellectual consistency requires me to advance my opponent's argument, but here goes.

    The language as presented not only bans civil unions but private contracts.

    Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.

    If it didn't ban such contracts, it would read as follows.

    Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.

    But that alone wouldn't satisfy its supporters, because they aren't simply trying to prohibit legal recognition of same-sex marriages.

    What is "a legal status identical or substantially identical ro that of marriage"? Is it a civil union? Is it a domestic partnership? Is it created by legal documents like medical powers of attorney,etc? Or does a legal arragnement cross the line when it ofers something like health care benefits? What other legal rights does it impact?

    I haven't heard a completely convincing argument that it doesn't include any of those things, and Althouse makes a convincing argument that it could be broadly interpreted by the Wisconsin courts.

    To deal with this problem, you should want to know what methodology the Wisconsin Supreme Court uses to interpret state constitutional amendments. Here is its most recent statement, from Dairyland Greyhound Park, Inc. v. Doyle — PDF — decided a few weeks ago:

    Constitutional provisions do not become law until they are approved by the people. Voters do not have the same access to the "words" of a provision as the legislators who framed those words; and most voters are not familiar with the debates in the legislature. As a result, voters necessarily consider second-hand explanations and discussion at the time of ratification….

    [O]ur traditional methodology on constitutional interpretation may be restated as follows:

    1. Courts should give priority to the plain meaning of the words of a constitutional provision in the context used. Buse v. Smith, 74 Wis. 2d 550, 568, 247 N.W.2d 141 (1976). The plain meaning of the words is best discerned by understanding their obvious and ordinary meaning at the time the provision was adopted, taking into account other (especially contemporary) provisions of the constitution. See State ex rel. Bare v. Schinz, 194 Wis. 397, 403-04, 216 N.W. 509 (1927).

    2. Courts may view the "historical analysis of the constitutional debates and of what practices were in existence in 1848 which the court may reasonably presume were also known to the framers of the 1848 constitution." Id. This principle permits courts to consider the debates surrounding amendments to the constitution and the circumstances at the time these amendments were adopted. We have said that courts may examine "the history of the times," meaning not only the legislative history of a provision (including word changes in the drafts of amendments) but also "the state of society at the time," with special emphasis on the "practices and usages" then in existence, so as to identify the concerns the provision sought to address. See Bd. of Educ. v. Sinclair, 65 Wis. 2d 179, 184, 222 N.W.2d 143 (1974) (quoting State ex rel. Zimmerman v. Dammann, 201 Wis. 84, 89, 228 N.W. 593 (1930)). These concerns are often illuminated by contemporary debates and explanations of the provision both inside and outside legislative chambers.

    3.

    Courts may scrutinize the earliest interpretations of the provision by the legislature as manifested in the first laws passed following adoption of the provision. Buse, 74 Wis. 2d at 568 (citing Payne v. Racine, 217 Wis. 550, 259 N.W. 437 (1935)). Legislation that implements a constitutional provision is thought to be a fair gauge of contemporary interpretation and is entitled to great deference.

    This three-part approach is repeated in many cases.

    So, can you predict how the Court would interpret the amendment? Here's the text:

    Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.

    Do you know what "the obvious and ordinary meaning" of that is? Do "the debates surrounding" the amendment and "the circumstances at the time" indicate that the text applies to more than "full-fledged civil unions"?

    Well, if the amendment passes with the Lautenschlager explanation in place, it would, ironically, support a broader interpretation. Lautenschlager hopes the unclarity she cites will keep people from voting yes, but if they do vote yes, opponents of gay rights will exploit her language in subsequent litigation.

    I oppose the amendment, so I'd like to say that this is one more reason to vote against it, but I understand the frustration of the the proponents who don't think what Lautenschlager is doing is sufficiently neutral. And I sympathize in advance with the litigants who — if the amendment passes — will be tasked to explain the explanation away.

    The irony is that an amendment like this makes it inevitable that the courts will have to decide the matter.

    All it takes is one person mean-spirited enough to interpret the law in the most extreme way possible, simple to make things difficult for one same-sex couple in a situation where the rights and protections in question might apply. It happens in states that don't have amendments like this one, so no one can guanrantee that it won't happen in states that do. And when the couple in question challenges it, no one can guarantee the outcome.

    One thing I can just about guarantee. If an amendment like Wisconsin's is interpreted and enforced in such a way as to further restrict the legal rights and protections of same-sex couples, those who support these amendments will probably not come forward and say "We didn't mean it that way," or come to the defense of the same-sex couples affected. Because at the end of the day, they aren't interested in protecting our families.

    Just like they accuse of us of using civil unions, domestic partnerships and other legal strategies as a "foot in the door" to gaining marriage equality, if the wording of an amendment like this one gives them a "foot in the door" to push for a broader interpretation and application against same-sex couples in the future, I fully expect them to take it. I haven't seen or heard anything yet that suggests that they won't or that it isn't exactly the outcome they intend. 

  20. I lost your counterargument since it was buried in an old post. Sorry.

    Terrance, a few problems with this.

    First of all, the amendment does not ban contracts it bans statuses It’s very difficult for me to believe that a court will interpret any given general contractual relationship as a “legal status identical or substantially similar to that of marriage.” (emphasis mine) The reason for this is simple: single contractual relationships very rarely create a legal “status” in the sense that marriage is used. (True, a contract can create statuses, such as “buyer” and “seller.” But these aren’t legal statuses in the sense of marriage: a status which carries with it predetermined rights and duties that cannot be contracted away, and to which third-parties must abide.) So a contract granting a power of attorney, on its own, doesn’t create a status such as marriage. In fact, any combination of contracts between two people don’t get you there.

    Where you might run into problems is in the example above, where a state university recognizes domestic partner benefits given only to those who are not (and cannot) marry, but are equivalent to those given to married persons. It’s a stretch, but that’s a tenable interpretation, because the U of M is treating only non-married people (actually only certain non-married people) to benefits it otherwise only gives to those who are married. But that is arguably falling afoul of the first sentence you quoted: it’s an organ of the state “recognizing” the relationship as a marriage. (Notably, this case arises in Michigan, which doesn’t have language like the second sentence.)*

    But that should have nothing to do with private contracts. First of all, few individual contracts will create a status equivalent to marriage, especially if it merely confers on an individual a benefit that could be given to a non-married person. Otherwise the amendment is TRULY overbroad. Is a court really going to interpret this to forbid me from, e.g., giving my brother or a local friend a power to deal with a hospital for me, even though the default might be to prefer my parents? Are all powers of attorney to non-relatives now void? If I hire person A (a manager) and provide him with domestic partner benefits, is it void because I provide marriage benefits to person B? What if I just give him a higher salary so he can afford such benefits himself? Is a court really going to set up such an unenforceable rule? Althouse throws up her hands, but doesn’t really provide a reason to suggest that the issue isn’t settled at Step One.

    Finally, Althouse is right about Step Two, but you overread her. The AG isn’t the only one who gets a say in the “debates.” Most of the proponents of the measure, after all, are decrying this interpretation, and the only ones putting it forward are those who oppose the bill. If a court reached that step of the process, it would find that the Attorney General’s interpretation–inserted mostly to defeat the bill–actually supported a broader reading. That’s a calculated political risk taken by Lautenschlager, I suppose. But hers will not be the only voice present (or indeed, pre-eminent).

    (Of course, you are correct that a hopelessly bloody-minded court could use statements of bill opponents to interpret a bill in a manner contrary to its proponent’s intent. Arguably, Justice Brennan did this in AFL-CIO v. Weber, in support of affirmative action. But there’s no indication that Wisconsin or Virginia courts are particularly predisposed to restrict homosexual rights in that fashion. And indeed, doing so seems likely to trigger a popular backlash.)

    The risk of getting through to Step Two, however, is miniscule. The analysis should properly end at Step One, simply because an interpretation that would strike down private contracts between homosexuals would also strike down massive numbers of contracts between heterosexual individuals that had nothing to do with marriage at all. From the same opinion quoted by Althouse:

    “Constitutions should be construed so as to promote the objects for which they were framed and adopted. . . . As the purpose of construction of an amendment is to give effect to the intent of the framers and the people who adopted it, a paramount rule of constitutional construction is that the intent of the provision ” is to be ascertained, not alone by considering the words of any part of the instrument, but by ascertaining the general purpose of the whole[.]” [W]hen the intent of the whole is ascertained, no part is to be construed so that the general purpose [is] thwarted, but the whole is to be made to conform to reason and good discretion.

    A court is not going to interpret a marriage provision to invalidate an untold number of contractual arrangements between unmarried but unrelated people just to enforce what is obviously a ban on gay marriage and civil unions.

    As for the rest of your arguments:

    It happens in states that don’t have amendments like this one, so no one can guanrantee that it won’t happen in states that do.

    Well, we know that the argument gets put forth by one state attorney general, and to the best of my knowledge never put into effect. Do we have one example of a private contract ever being set aside by a judicial actor as the result of a DOMA? I’m still unable to find one, and I’ve been looking for days now. Enlighten me.

    Dumb arguments get put forward all the time, but that’s not a compelling argument against legislation. If that were the case, we could set aside the tax code because (a) implausible tax shelters exist and (b) people can make very silly movies making very silly arguments about same.

    If an amendment like Wisconsin’s is interpreted and enforced in such a way as to further restrict the legal rights and protections of same-sex couples, those who support these amendments will probably not come forward and say “We didn’t mean it that way,” or come to the defense of the same-sex couples affected.

    I would imagine some of them won’t spring to your defense (though in fairness, many will). And Lautenschlager isn’t going to come out and say that her language is controlling, either. So what? We’ve now established that there’s hypocrisy in the political process. Our innocence thus lost, perhaps we could return to the question of how the amendment is likely to be interpreted, and not whether there are silly people willing to make silly arguments, a fact I’ll willingly concede to you?

    It’s vanishingly unlikely that a court will ever reach the conclusion you’re describing. Althouse is right that Lautenschlager makes such an outcome more likely, but we’re now talking “Rush Limbaugh quarterbacks the Detroit Lions to the Superbowl next year” to “Detroit Lions win the Superbowl next year” levels of likelihood. (Actually not even that. Heck, even the Lions are due a good season every now and then. But I wouldn’t put money on it.)

    Which leads us to:

    I haven’t seen or heard anything yet that suggests that they won’t or that it isn’t exactly the outcome they intend.

    If they intended to push it, they’d generate just the kind of backlash that Goodridge generated against gay marriage proponents. At least thus far, proponents of DOMAs have shown themselves to be pretty saavy (in that they get their laws passed). If they do something this particularly tin-earred, I’ll be stunned myself. Further, they’ll lose a lot of support politically, and I’ve yet to see any indication that the judiciary (in Wisconsin**???) has a predisposition to interpret language that broadly. The question isn’t “Do you think your opponents may do something?” The question is always, “Do you think they’re likely to succeed?” And to this point you’ve given us no reason to suspect they will.

    *The solution for U of M is simple, however: give “domestic partner”-like benefits to everyone in the system, regardless of whether they’re married or not. The benefits will be overinclusive (I could include a cohabiting brother, I suppose), but allowing gay couples to change “partners” every six months (as the U of M rules referenced above) is a bit overinclusive as it is. The point is, once the benefit isn’t based on “marriage,” the statute/amendment becomes irrelevant.

    **There’s something very ironic here. The only reason that DOMAs are necessary–and certainly the only reason they’re passing–is because voters are concerned that their constitutional courts will follow the route of Massachusetts and start granting progeny to Goodridge. For your argument to have force, we must accept the idea that proponents of the amendment in Virginia and Wisconsin are doubly irrational: first, in that they feel that their courts are hostile enough to gay rights to expansively interpret an only arguably ambiguous directive to their benefit, and second, that with the benefit of such bigoted justices, any amendment in defense of marriage is necessary in the first place. This particular paradox confounds me, but perhaps you would offer an explanation?

  21. Me: Why would the State create, or maintain, a legal relationship that is elevated, and preferred, above other private relationships?

    Terrance: I’ve already answered it

    I must have missed it.

    That’s why I asked it a different way in this thread:

    What would be the purpose of state elevation of the one-sex-short arrangement, even if that new status merely coexisted with marital status?

    Please provide a hyperlink to your answer to the question asked.

    * * *

    No homosexual individual is prohibited from marriage. Sexual identity is not a criteria of marriageability.

    Two heterosexual persons of the same sex are not marriageable. The same applies to two homosexual persons.

    Neither man nor woman is treated unequally by the marriage law that requires the equal participation of both sexes.

    But for two persons to form a one-sex-short arrangement is a liberty exercised, not a right denied. That choice is not banned, whether it is called “gay marriage” or not.

    Unlike, polygamy, which is explicitly prhibited and subject to punishment and pentalties, there is no ban on the one-sex-short arrangment; and if a twosome formed such personal arrangement, they would commit no violation of the law, and hence would be subject to prosecution of unlawful behavior.

    There is no ban. The state amendment proposes no ban. Only the overheated rhetoric of SSMers actually calls the affirmation of marraige a ban on something that two homosexual persons may do freely and may formalized contractually between themselves.

    * * *

    The demand of SSMers appears to be that society should sideline “the combination of sex integration and responsible procreation” in favor of an alternative that is taylored to fit the one-sex-short arrangement. Specifically, the homosexed arrangement.

    Reciprocal Beneficiaries is a provision that accomodates the former without being established as exclusively available to the latter.

    Yet it would be rejected by SSMers whose goal is to equate marriage with the nonmarital alternative they choose for themselves. And in that rejection, they reject marriage itself and would introduce selective sex segregation where sex integration has always been combined with responsible procreation.

    I don’t think that SSMers want marriage. They want state recognition of something else. The devolution of the social esteem for marriage itself. It is why so often the SSM argumentation that is put forth is focussed on the imperfections of our marriage culture.

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