The Republic of T.

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Conservative Radio Host: “WI Marriage BIll Goes Too Far”

I posted last week on Wisconsin’s anti-gay marriage amendment and the controversy that ensued after the state attorney general offered an explanation of the proposed amendment which left it up in the air whether its passage what its passage might mean for domestic partnerships, civil unions and other legal arrangements between same-sex couples and other unmarried couples in Wisconsin. Quite a discussion broke out here as well, centered around whether we should unquestioningly accept the assurances from the supporters of such amendments that they aren’t intended to and won’t affect anything but marriage, or whether at the very least it’s uncertain what effect they will have if and/or until enacted.

Basically, do they overreach or don’t they? Interestingly enough, not even all conservatives agree on that one. John over at Americablog points out that least one conservative radio host thinks the Wisconsin marriage amendment goes too far.

[I]t increasingly looks as if the GOP miscalculated: making at least three major strategic errors:

First, they overreached, by making the amendment far broader than it had to be, including a ban on civil unions and perhaps on an array of other domestic benefits.

… The constitutional amendment on the November 7 ballot reads:

“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.”

Had Republicans stopped at he first sentence, the debate would have been squarely and unambiguously on he issue of gay marriage and the amendment likely would have passed easily. But they didn’t, and that decision has shaped the current debate and changed the political dynamic.

While the first sentence is clear, straightforward, and quite specific the second sentence is far more sweeping and ambiguous, lending itself to a wide range of interpretations. The language seems to ban civil unions but does it also extend to other benefits, as well? And if so, which ones?

So, if a bona-fide conservative is asking questions, can those of us at whom these amendments are targeted be excused for asking the same questions, and not accepting the pat answers of the people supporting these amendments? If even some conservatives aren’t sure, can we be excused for having some doubts too? And given the stakes involved for us when amendments like these get passed, can we be forgiven for voting with our feet and heading for states where at least the handful of rights and protections we’ve secured various legal arrangements aren’t called into question? Can we be excused for being unwilling to “wait and see” if we end up being test cases, and for deciding the risk isn’t worth it?

All rhetorical questions, of course, that will be brushed off as “alarmist” by the folks who support these amendments. But they bear asking anyway, since there’s room for doubt.

On thing that’s striking about hearing this from a conservative, and one who — based on his remarks — seems to oppose same-sex marriage: an aversion to canceling out the possibility of some legal rights and protections for same sex couples. (He also mentions that conservatives and moderates in the state seem “lukewarm” on the amendment, possibly for similar reasons.) It brings to mind the words of the judge who initially struck down that Georgia’s anti-gay marriage amendment (and whose ruling was later reversed).

“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.”

That also brings to mind a poll I mentioned earlier which showed that, while a majority (56%) of Americans oppose same-sex marriage, a majority (53%) also supported allowing same-sex couples to enter into legal agreements that provide many of the same benefits as marriage. (I’m working on a post that gets into how many and which ones.) And according to another poll, the overall trend appears to be moving towards majority support of same-sex marriage.

All of that is to say that a conservative expressing doubts like this about the Wisconsin amendment is a small sign of progress. Because, as the Georgia judge pointed out, some people who earnestly oppose same-sex marriage support giving same-sex couples most of the rights and protections of marriage. That includes conservatives, and at least some of them will balk at the possibility of taking away the few protections that are currently available through legal documents that aren’t guaranteed to be recognized anyway, even before an amendment passes.

If nothing else, it just underscores that our concerns about amendments like Wisconsin’s aren’t entirely unfounded, and even people who are opposed to same-sex marriage aren’t necessarily in favor of eliminating everything else too.

4 Comments

  1. So, if a bona-fide conservative is asking questions, can those of us at whom these amendments are targeted be excused for asking the same questions, and not accepting the pat answers of the people supporting these amendments?

    Well, yes. The fact that a bona-fide conservative can accept a silly argument–particularly one getting a lot of press–doesn’t make it any less silly. It means that there are also silly conservative talk show hosts.

    And of course, the answers you’ve been mocking aren’t “pat.”

    Is there any precedent suggesting that an act like Virginia’s has ever struck down privately-contracted benefits? (Is there precedent for a contract being interpreted to provide a “legal status” similar to marriage?* If so, in what situations?) There are quite a few similar acts out there: have they ever been interpreted that way? So far as I can find, the answer is no. That’s an argument from precedent. Arguments from authority don’t get any more convincing simply because the authority is on one side of the political spectrum or the other. Particularly when that “authority” is just a talk-radio host.

    * E.g. in states that prevent homosexuals from adopting, are they also prevented from giving their goods to a straight person through inheritance (thus creating something similar to a legal relationship of adoption through a contract-like device)? I somehow doubt it, but if such a case were mentioned, it would give these phantasmagoric worries some actual flesh.

  2. Maybe I’m wrong, as I’m hardly a legal expert, but the flip side of that is that there haven’t been any cases where such an amendment has been interpreted in that manner and that interpretation has been succesfully challenged. To me, and to some like the gay families hightailing it out of VA, that it hasn’t happened yet is no assurance that it won’t. And taking a wait-and-see approach approach might just mean taking the risk of being the actual flesh on those concerns.

    And if it came to that, I wouldn’t be too hopeful about my chances of prevailing in a state as conservative as Virginia. (How would a judge as conservative as, say, Roy Moore rule in that kind of case?)

    Again, why take the risk? Why not move to states less hostile to our families?

  3. Terrance, let’s be serious here. First of all, your “gay exodus” theme is pretty anecdotal. Besides, even if I assume there are homosexual couples fleeing Virginia in droves, it doesn’t make them any more sensible, or your legal arguments more plausible. It just means that you (or rather, those putting forth views like yours) have scared them.

    The lack of any similar cases being brought suggests that such a case isn’t particularly tenable, not that ‘oh my god, it might happen.’ Secondly, this entire argument isn’t here because judges or legal academics think there are doctrinal reasons to support this particular textual interpretation. It’s here because while Virginians might support a DOMA, and even an attempt to prevent a Vermont style imposition of civil unions, they’re not in favor of overruling private contractual arrangements. Characterizing the act as such makes it less likely to pass. It’s a bogus legal argument in aid of affecting people at the polls.

    That’s the reason I asked you to craft language for a Virginian act that would take the private contractual argument off the table. Not because you’d do it, but because it’s impossible. This argument gets raised in every DOMA fight, simply because while it’s legally ridiculous, it’s politically effective. The same scare story would be going around if the second sentence of Virginia’s amendment didn’t exist. And it’s why articles such as this one find that gay marriage advocates interpret the law much more expansively than, say, law professors (who point to limitations from the Contracts Clause, for instance, or point to how the law is likely to interact).

    This is one reason that I have such a hard time fellow-travelling with gay rights activists. At least with religious advocates, I can see a premise one can honestly believe (“homosexuality is a sin”) and positions drawn from it. I may disagree with them–indeed, I do passionately–but it’s an honest argument one can honestly make. The standard for DOMA opponents, however, seems to be “let’s throw whatever garbage we can against the wall and see what sticks. If we can call some decent people bigots while we’re at it, all the better.” There’s no way to really argue against that. You’re right: I can’t prove that no judge would follow your interpretation. (Though even in more conservative Alabama, Roy Moore gets overturned.) I can’t prove that tomorrow the moon won’t get hit by a meteor and Three Moons Over Milford will become an eerily prescient docudrama, either. All I can do is point out that the odds of either are vanishingly small.

    It would at least be decent of you to admit that (a) you can’t put forward a decent legal argument for why the language at issue would be treated in the way you’re proposing, and (b) it’s incredibly politically convienient for your side–which doesn’t want the civil union ban at all–to present the language as posing a risk to private contracts. If I were reporting that people were being scared away from my state, I’d at least want to consider whether they were being scared away for good reason, or just as fallout from a bad political season.

  4. so, if i am reading this bill right… they are banning merry (happy) marriages… there is no reference to homosexuals… it’s saying if i am not legally wed by the state of wisconsin and i live here and am married in the presence of god my marriage is not valid… i believe that if i am married by god i hold this more valid then a piece of paper that certifies me of it, so in actuality they dont recognize a mans commitment to god…

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