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.

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?

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. 

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).

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.

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.

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.

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.