So what about the second sentence? It says "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state."
I have to admit that I don't much like it. There are three issues.
First, do we need to constitutionalize the question of civil unions? One might think that, having told the courts that, no, our constitution's guarantee of equal protection does not mandate the extension of marriage to same sex couples, whatever other legal accommodations we might want to make for such relationships can be worked out by the legislature.
But the Vermont Supreme Court's decision in Baker mandated not gay marriage but civil unions. In taking these off the constitutional table, the amendment is simply acknowledging the unbounded imagination of the law profession culture.
Second, do we really need to say that civil unions cannot be recognized? The amendment goes beyond saying that the constitution does not mandate civil unions to say that they may not be established.
I would rather not do this. I think there is a reasonable argument that civil unions ought not to be recognized. They do avert some of the pressures associated with the potential legal misfit of rules that have grown around heterosexual marriage with those that might be best suited for same sex unions. On the other hand, I am not prepared to dismiss the symbolic nature of the law, particularly if civil unions cannot be limited to same sex couples. In my mind, civil unions open to both heterosexual and homosexual couples would be the worst of all possible worlds. I'd rather have gay marriage.
In deciding what position to take on the amendment, however, I have to accept the choices I am presented with. I think I could write a better amendment. But I also know that we have three - and maybe four - Justices on the Wisconsin Supreme Court who have virtually no compunction against imposing their version of the "ideal society" on the rest of us.
This is, for better or worse, the amendment that we have to vote on. Proponents of greater legal recognition of same sex relationships ought to realize the harm that court decisions like Goodridge (MA) and Baker have done to their cause. They have forced those of us who have reservations about immediate wholesale revolution in family law to take extraordinary measures to protect ourselves against judges whose jurisprudence has never evolved beyond first year Con Law.
I do not want to constitutionalize civil unions, but I am more concerned with the potential for radically changing the nature of marriage by judicial fiat than I am with the consequences of not permitting such unions.
It may be easy for me to say that because I am not gay, but I do so for two reasons. First, the harm to society from any further decline in marriage would be real and widespread, while the harm to same-sex couples would be limited and largely symbolic. This is because I think most of the practical problems associated with the lack of marriage for such couples can and should be ameliorated by specific - mostly private steps - not by the creation of a new status.
Things like inheritance, joint ownership of property and hospital visitation, end of life decisions and guardianship of minor children following the death of a parent are all easily resolvable today. A gay couple can absolutely provide for everyone of those things by agreement.
Access to employer-provided spousal benefits are another matter. Putting aside the accidental irrationality of linking health insurance to one's employer (an arrangement that I think is doomed in the long run, but that's another topic), there is less justification for such arrangements to relationships in which one party is far less likely to be financially disabled by childrearing. The same can be said for the inability to continue receiving the higher social security benefits of one's deceased partner.
In any event, employers certainly have the right to provide health insurance and other partner benefits should the market demand it.
Critics of the amendment argue that the second sentence will preclude such arrangements. Once again the drafters of the amendment did us no favors. While I think the most plausible reading of "legal status" is a bundle of rights and responsibilities created by the government and not contractual rights privately agreed upon, this could have been set forth more clearly. As I have blogged earlier, Ann Althouse thinks proponents of the amendment are hypocrites for arguing that we should trust the courts on this, but as she knows, good law professor that she is, there is always going to be the possibility of misconstruction, language being an imprecise thing.
If we didn't have hyperactive courts, I'd tell the proponents of the amendment to go back to the drawing board. If I didn't think the stability of marriage was quite as critical as it is, I would be less wary of the potential unintended consequences of changing it. The amendment is far from perfect and the arguments for greater legal recognition of certain aspects of same sex marriage are not without merit.
But right now, I am leaning in favor of the amendment.
One more post will consider criticisms and what's being said elsewhere in the cheddarsphere.