Saturday, October 14, 2006

It's not about the benefits

In the comments to some of my recent posts on the marriage amendment, a reader says that no one on the "yes" side ever answers the question of what rights gay couples should have. He or she throws out the following:

1. Health insurance for partner and/or children

2. Ability to take family medical leave if partner and/or child is sick or dying

3. Adoption

4. Ability to take funeral leave if partner or child dies

5. Right to receive medical records of partner (careful here, HCPOA does not allow this)

6. Right to view educational rrecords of child (assuming not the bio child)

7. Default position of medical decision-making (Rick, do you carry weith you at all times a HCPOA for your wife?)

8. Right to be considered "family" in Intensive Care Unit or other emergent health situations
.

Here's my answer: If it's not done by creating something like marriage, all of them. Today, two people can accomplish much of this by simple agreement. If the law were changed to allow two people to "co-adopt" a child, that wouldn't make those two people "substantially married." If an employer decides to allow you to designate a co-beneficiary for your health insurance, that doesn't marry you either.

This is not about denying people benefits. It's about creating a thing - a legal relationship or status - that is substantially like marriage. The reason I oppose that is because I think it will inevitably contribute to a changed social understanding of what marriage is about, i.e., that it is merely about facilitating a sexual relationship that is chosen and defined by the parties. Marriage is what it is in our culture because it is an accommodation of the often differing interests of men and women in heterosexual relationships. Maybe you can change the definition of marriage and retain that meaning, but I think that the odds are against it. Maybe the left is right and gender is a social construct such that most (as opposed to some) relationships between two men or two women are just like a relationship between a man and women and would therefore be served by precisely the same rules and social norms and that mothers and fathers are interchangeable as long as they are loving and responsible. But that sounds implausible to me.

Because marriage is such a vital institution, I don't want to take the risk. If there is a social need to create legal avenues for same sex couples to make certain agreements or have access to certain benefits, then we should provide the right for two people to make those agreements or share those benefits. But what we shouldn't do that by creating a status that is almost like marriage.

That's my view and I cannot say that it is the view of the big bad Alliance Defense Fund. If it's not, then we just disagree. But since Fair Wisconsin seems to think that I - and supporters of the amendment - can't possibly have a view that differs from ADF, let me at least say what I understand that organization's view to be. It is my understanding that the Alliance Defense Fund essentially agrees with me. Not only have I been told by very senior people within that organization that "we don't care about benefits," they also seem to act that way in public.

For example, as opponents of the amendment have pointed out, they did sue to prevent Salt Lake City from extending domestic partner benefits. But, I am told, also took the position that the city could simply permit employees to designate a co-beneficiary (which it ultimately did.)They have publicly supported reciprocal benefits legislation. What they oppose is extension of benefits by the creation of a status. While I think that there is more room to proceed by using the concept of a domestic partner and I may have a different legal opinion on what the second sentence prohibits (in which case, of course, I would be right), it seems that, even for ADF, it's not about benefits.

I understand that many of the people associated with the Alliance Defense Fund are conservative Christians who believe that homosexual intimacy is wrong. I am, in many respects, a conservative Christian, but I am not convicted of that belief. I do not believe that the traditional Jewish, Christian and Islamic view is "bigoted" or "hateful." I think that Roman Catholic thought on the role of complementarity in human sexuality, in particular, deserves careful attention.

But, candidly, I just do not feel called to pass judgment. While I think that the notion that same sex intimacy is "just the same" as heterosexual intimacy is far too simple, I will not call gays and lesbians sinners. That other people have a different view on this than I do may lead them to take positions on some issues that are different than the ones that I would take. Just like those on the left, we who lean to the right are not monolithic.

But believing that the law ought to permit people to enter into intimate homosexual relationships, doesn't mean that the law should treat same sex couple the same way as it treats heterosexual couples. It does not mean that the desire or need for a very small group of people for certain legal arrangements should trump the social need to define and structure marriage in a certain way. Those needs and desires can be addressed in other ways.

6 comments:

Dad29 said...

Thanks for the legal clarification. We all knew that, but some (read: Sykes) were not certain.

todd said...

This is pure smokescreen. And it still depends on an interpretation of the amendment counter to that put forward by ADF attorneys and others: that the amendment prohibits the recognition of gay relationships for any purpose.

It also fails to dispute the point that the amendment overturns existing public employee domestic partner programs and the Regents' original claim: that the amendment prohibits them from enacting domestic partnership programs.

Anonymous said...

The real risk to marriage and society is in the outcomes this Amendment forces: A group of folks who are already legally barred from marrying by state statute because they are of the same gender will be prevented by the Constitution from doing something "similar" to marrying. And under this same change to the Constitution, a second group of folks (those of opposite genders) will also be prevented from legally enforcing arrangements they make that are "similar" to marriage. (If the institution of marriage is so valued by society, then why is it so urgent that we deny people arrangements that are "similar" to marriage? Will we "strengthen" marriage among the second group by coaxing more of them into precipitous weddings -- folks who will increase the rate of messy divorces that are overwhelming our courts today? Will we strengthen the social fabric when we entirely ban marriage and similar arrangements among those in the first group, including even those who have proven success as partners, parents and community members?
The second sentence of the proposed Amendment is the one with real practical effect. And it is bad policy -- if your concern is the success of marriage as an institution and the good that it brings society.

Anonymous said...

If you're willing to provide a lot of these same benefits by other means, then say so to your state legislature. The UW has asked the state to do so for state employees, since many other states do so, but your legislators won't do so. That's a reason for gays to try to get benefits by other means to take care of the children, partners, etc., whom they love and/or for whom they have legal responsibility.

Until the state legislature is willing to provide the benefits, it is a fallacy to say that gays can get comparable benefits by other means here.

Anonymous said...

If you think those protections should be available, you should vote No. The simple fact is that these protections are going to be harmed and probably eliminated by the amendment. They already have been taken away in other states with substantially similar amendments.

As a lawyer, you know that one can't contract to prevent the IRS and DOR from taxing a property transfer from one partner to another, even upon death. Real families lose their homes over this, and the amendment only serves to solidify the basis for such discrimination.

As a lawyer you also know that this will eliminate the possibility of adoption because Wisconsin statutes on adoption require people to be "spouses" in order to adopt.

As a lawyer you should also understand that this amendment will result in redaction of the legal processses that we have been able to cobble together to make some "family-like" arrangements to protect our children. You know that in other states they have taken those protections away, or they are currently challenged in court cases.

Rick, you know this is true, and I can't believe you would vote Yes, knowing why the second sentence is there. The political manipulation is destroying families for no reason except in an attempt to win back the governor's mansion. You've seen John Gard's letter to Julaine Appling admitting that, right? How dare Wisconsin use real families as political bait. And how shameful it is to know that and still push for a Yes result. I am past anger and on to sad.

Dad29 said...

Well, the smoke filling the combox room is getting REALLY thick.