Thursday, March 16, 2006

S-squared, Sykes and same sex marriage pt. 6

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.

4 comments:

Dad29 said...

The Second Sentence has two purposes: the first is to preclude Wisconsin recognition of Massachusetts "marriages" (and there will be more to come.)

The second is to preclude mandatory health-insurance coverage of "partners" by the State and its subsidiaries: counties, cities, townships, and villages.

Note well: the sentence only precludes an interpretation which "mandates" such coverage.

It does NOT preclude bargained contracts from granting such coverage.

Your analysis is correct. It is a truly sad day when we have to admit that the judiciary is no longer concerned with the greater good of the state.

Todd said...

Again, a couple points.

First, I'm beginning to think you and your Google ads are conspiring here. :-) Your most underlying thesis seems to be this: gay couples are far more dissimilar than they are similar to heterosexual couples. And dang if your ads aren't trying to sell me gay wedding rings, gay this and gay that -- as though I wouldn't buy the same old band as any other guy. What kind of subliminal underscoring of your argument are you aiming for here, Rick?

Second, I think you underestimate the force of the second sentence. Others make this argument better than I would, so I point folks toward the Fair Wisconsin blog.

Third, it seem hazardous and irresponsible (radical even) to support an amendment to the constitution when you approve only of half. As a columnist and even as a lawyer, you've got a much louder voice than the vast majority of everyday folks and are thus able to participate more actively and forcefully as a citizen. You of all people shouldn't throw your hands up and accept "for better or worse" anything legislators throw at you. If you don't like it, for Pete's sake don't vote for it--send your lawmakers back to the drawing board. Any attempted marriage suit would take longer to go through the courts than a second amendment process.

This is an amendment to the Constitution we're talking about. And not to any constitution. To the oldest standing one outside of New England.

Fourth, you list a group of crucial measures that gay couples should take to legally strengthen their families. But you don't have to be a bleeding heart liberal to commiserate with the working class gay families who will choose more immediate expenses such as health care over lawyers fees. The relationship strengthening supports of marriage become most important during moments of crisis, and every year gay families see their crises become tragedies in ways that civil unions or marriage would have averted.

The harms to gay couples, moreover, far exceed these sorts of legal rights. There are psychological, social, and moral harms as well. As someone who appreciates so highly the contributions of marriage to society, you must see this.

Fifth, I think your argument continues to confuse procreation with child rearing. You fail to mention anywhere the harms to children with gay parents, in part, I think, because you so persistently refuse to think of gay people as parents. Here, if it's okay, I'll just cite Dale Carpenter talking about the 2000 census data:

"Lots of children are being raised by these gay couples. Of the reported female unmarried partners, more than 1/3 are raising children. Of the male unmarried partners, more than 1/5 are raising children. That’s about 162,000 unmarried same-sex households in the U.S. raising children. (This number, too, is almost certainly an undercount. . .) This data is also available with the U.S. census here.

"Once we include single gay people raising children, estimates of the total number of children in the U.S. being raised by gay parents (singles and couples) range from a low of 1 million to a high of 9 million. That’s between 1% and 12 % of all the children in the country. These estimates come from Judith Stacey and Timothy Biblarz, “(How) Does the Sexual Orientation of Parents Matter?”, 66 Amer. Sociological Rev. 159, 164-65 (2001). I think the estimates on the lower end, somewhere in the 1-2 million range, are more reasonable."

Finally, on a more personal note, you also fail to mention the one harm that would drive my family from Wisconsin if this ban passes. My partner and I have been together six years. We are, if I may be immodest, good people with strong values. We have a rock solid relationship that is a model to our friends and community. Within a year we will begin the process of adopting a child. As an attorney, you no doubt know that Wisconsin law will allow only one of us to legally adopt. Polling shows that most Wisconsinites would repeal this cruel restriction, and I've no doubt that this would happen within a couple years. If this ban passes, there would be no constitutional way to modify state law. The ban would also jeopardize all the bizarre legal contracts couples have formed to get around the restriction.

There's no way my partner and I are going to risk leaving our child with the insecurity of only one legal parent. We would be forced to leave a state we deeply love.

Make no mistake: this second sentence has potential ramifications we can't even yet fathom. It's a radical and unstable bit of language to put into a document that we depend on to undergird and support.

Todd said...

Again, a couple points.

First, I'm beginning to think you and your Google ads are conspiring here. :-) Your most underlying thesis seems to be this: gay couples are far more dissimilar than they are similar to heterosexual couples. And dang if your ads aren't trying to sell me gay wedding rings, gay this and gay that -- as though I wouldn't buy the same old band as any other guy. What kind of subliminal underscoring of your argument are you aiming for here, Rick?

Second, I think you underestimate the force of the second sentence. Others make this argument better than I would, so I point folks toward the Fair Wisconsin blog.

Third, it seem hazardous and irresponsible (radical even) to support an amendment to the constitution when you approve only of half. As a columnist and even as a lawyer, you've got a much louder voice than the vast majority of everyday folks and are thus able to participate more actively and forcefully as a citizen. You of all people shouldn't throw your hands up and accept "for better or worse" anything legislators throw at you. If you don't like it, for Pete's sake don't vote for it--send your lawmakers back to the drawing board. Any attempted marriage suit would take longer to go through the courts than a second amendment process.

This is an amendment to the Constitution we're talking about. And not to any constitution. To the oldest standing one outside of New England.

Fourth, you list a group of crucial measures that gay couples should take to legally strengthen their families. But you don't have to be a bleeding heart liberal to commiserate with the working class gay families who will choose more immediate expenses such as health care over lawyers fees. The relationship strengthening supports of marriage become most important during moments of crisis, and every year gay families see their crises become tragedies in ways that civil unions or marriage would have averted.

The harms to gay couples, moreover, far exceed these sorts of legal rights. There are psychological, social, and moral harms as well. As someone who appreciates so highly the contributions of marriage to society, you must see this.

Fifth, I think your argument continues to confuse procreation with child rearing. You fail to mention anywhere the harms to children with gay parents, in part, I think, because you so persistently refuse to think of gay people as parents. Here, if it's okay, I'll just cite Dale Carpenter talking about the 2000 census data:

"Lots of children are being raised by these gay couples. Of the reported female unmarried partners, more than 1/3 are raising children. Of the male unmarried partners, more than 1/5 are raising children. That’s about 162,000 unmarried same-sex households in the U.S. raising children. (This number, too, is almost certainly an undercount. . .) This data is also available with the U.S. census here.

"Once we include single gay people raising children, estimates of the total number of children in the U.S. being raised by gay parents (singles and couples) range from a low of 1 million to a high of 9 million. That’s between 1% and 12 % of all the children in the country. These estimates come from Judith Stacey and Timothy Biblarz, “(How) Does the Sexual Orientation of Parents Matter?”, 66 Amer. Sociological Rev. 159, 164-65 (2001). I think the estimates on the lower end, somewhere in the 1-2 million range, are more reasonable."

Finally, on a more personal note, you also fail to mention the one harm that would drive my family from Wisconsin if this ban passes. My partner and I have been together six years. We are, if I may be immodest, good people with strong values. We have a rock solid relationship that is a model to our friends and community. Within a year we will begin the process of adopting a child. As an attorney, you no doubt know that Wisconsin law will allow only one of us to legally adopt. Polling shows that most Wisconsinites would repeal this cruel restriction, and I've no doubt that this would happen within a couple years. If this ban passes, there would be no constitutional way to modify state law. The ban would also jeopardize all the bizarre legal contracts couples have formed to get around the restriction.

There's no way my partner and I are going to risk leaving our child with the insecurity of only one legal parent. We would be forced to leave a state we deeply love.

Make no mistake: this second sentence has potential ramifications we can't even yet fathom. It's a radical and unstable bit of language to put into a document that we depend on to undergird and support.

Todd said...

Apologies for the duplicate --- Blogger was actizing strangely... feel free to delete one.