Thursday, June 18, 2009

The constitutionality of domestic partnership status

One of the unfortunate aspects of legislative process in Wisconsin is that so much major policy that is either unrelated or tangentially related to appropriations is made in the budget bill. This results in a lack of public scrutiny and debate and, in my view, too much logrolling. It empowers the ability of legislative leaders - as opposed to constituents - to twist the arms of backbenchers. It's not a Republican or Democratic thing. It happens no matter which party is in power.

Among other major policy initiatives in this year's budget bill are the creation of a domestic partnership status for same sex couple and the extension of health care and other benefits to a household member of state employees with whom the employee says he or she shares financially responsibly. The latter is clearly targeted for gay and lesbian couples although it is not limited to them.

The latter proposal is bad policy but does not violate the marriage amendment. It confers a rather limited benefit on a basis that is not substantially similar to marriage. An unmarried state employee could share her benefits with her roommate in return, say, for a reduction in her share of the rent. (That's one of the things that makes it bad policy.) Proponents of the amendment (including me) repeatedly said that such benefits would not violate it.

The former proposal does violate the amendment. While the reasons that I believe this to be so are more fully stated in a forthcoming paper co-authored with my former student Daniel Suhr, the essential problem is that it creates - it is intended to create - a status with the same social meaning as marriage.

Those who defend the new domestic partnership status argue that it does not confer substantially all of the legal incidents of marriage and they are right about that. While I don't have room to specify what it does and does not do, it omits certain of the incidents of marriage that create legal claims by one spouse against the other. Domestic partners need not get divorced, are not subject to Wisconsin's system and are not obligated to support one another.

In my view, determining whether a new status is substantially similar to amendment is not a simple matter of calculating the percentage of legal incidents that it shares with marriage. The reason I believe that has to do with the nature of the judgment that voters necessarily made when the amendment passed.

We know that the purpose of the amendment was not simply to reserve the term "marriage" for heterosexual relationships. Had that been the purpose (and there are constitutional amendments in a number of states that do only that), it would have been unnecessary to include the "second sentence" prohibiting the creation of a status "substantially similar" to marriage.

In the paper, Daniel and I consider why voters would have passed that second sentence. There is little or no evidence in the ratification history that they were motivated by animus toward gays and lesbians. Rather the debate was almost entirely about "saving" heterosexual marriage. It was about what the recognition of homosexual marriage (or its equivalent) would "do to" heterosexual marriage as an institution.

The only way in which a status equivalent to marriage for same sex couples could do anything to marriage is by altering its social meaning, i.e., by contributing to changes in the way that society views marriage. This would, proponents argued, change the privileged status enjoyed by marriage, alter the way in which marital partners view it and create pressure for changes in its legal incidents.

Opponents of the amendment argued that this could not possibly happen; often acting as if they could not understand what proponents were saying. (In fact, many sophisticated academic proponents of same sex marriage expect it to lead exactly where the amendment's supporters feared it would lead and support the redefinition of marriage for that very reason.)

But it no longer matters who was right - at least for interpretive purposes - because the amendment passed. Even if the arguments of amendment supporters were wrong, the voters concluded otherwise. For that reason, we argue, any status that is intended to confer upon sexual relationships other than those between one man and one woman a social meaning that is substantially similar to marriage is prohibited.

Toting up the conferral of benefits is part of the process of identifying such a status but it is not dispositive. If a status is structured in a way to suggest that it is a form of marriage for relationships other than those between one man and woman, it presents the risks to marriage that the voters (rightly or wrongly) wanted to avert.

The proposed domestic partnership status, it seems to me, is intended to and will have precisely that effect. The conditions for entry into a domestic partnership mirror the conditions for entry into marriage save that the partners must be of the same sex. While the status does not include all of the incidents of marriage, it includes enough to be seen as a status mimicking marriage.

In fact, I would argue, what it excludes suggests precisely the harms feared by the amendments proponents. The legally "sticky" nature of marriage are a consequence of its potentially procreative nature. Marriage places financial obligations - and does not simply confer benefits - upon the partners because of the economic vulnerabilities associated with childbearing and childraising. It is not surprising that these obligations would be less critical for relationships that are not procreative and in which children are far less likely to be present. Even if same sex couples adopt children, it requires an intentional choice which is not always present when heterosexual couples make babies. The need for a choice permits - for those who wish to do so - the voluntary assumption of financial obligations toward one another. It is less essential that these obligations be intrinsic to the relationship.

The creation of a status for same sex couples that is "their form of marriage" and which does not require these commitments will certainly create pressure to eliminate these commitments for heterosexual couples and will further undercut the notion that marital commitments ought to be "sticky" in this way and must include these mutual commitments and financial intertwining.

We are aware of statements by some proponents of the amendment during the ratification process that are now used by supporters of the domestic partnership scheme. Upon close examination, most of these statements were not about the creation of the type of status about to be enacted or are simply irreconcilable with what we conclude to be the unavoidable public meaning of the amendment.

The better argument in favor of the constitutionality of domestic partnership status is that the exclusion of a mutual obligation of support, the lack of a requirement for divorce and absence of community property will preclude these domestic partnerships from being seen as a "marriage-like" relationship. I think that claim is belied both by the nature of the new status and the reasons that its supporters give for its enactment, i.e., recognition of same sex unions as "equal" to marital unions is one of the principal reasons for its creation.

9 comments:

John Foust said...

If you're two consenting adults...

Anonymous said...

In the paper, Daniel and I consider why voters would have passed that second sentence. There is little or no evidence in the ratification history that they were motivated by animus toward gays and lesbians.

I'll reserve full judgment until I see the paper, but I'm really interested in the methodology you used to determine voter motivation on such an emotionally-charged and complex issue. Maybe most of the public arguments for the amendment, at least the official ones from the leading groups, were explicitly about 'protecting traditional marriage,' it seems highly questionable to assert that message didn't trigger underlying feelings about homosexuality when same-sex marriage (note: NOT domestic partner benefits...more on that below) is framed as a 'threat' to something most people hold dear.

Upon close examination, most of these statements were not about the creation of the type of status about to be enacted or are simply irreconcilable with what we conclude to be the unavoidable public meaning of the amendment.

So, on the one hand, voters were without question reading just the explicit arguments coming from the pro-amendment contingents during the debate...except when it comes to their pronouncements about domestic partner benefits not being affected by the amendment, in which case a closer examination is necessary to see that those pronouncements 'are simply irreconcilable with what we conclude to be the unavoidable public meaning of the amendment' (also known as: 'well, whatever').

PaulNoonan said...

The creation of a status for same sex couples that is "their form of marriage" and which does not require these commitments will certainly create pressure to eliminate these commitments for heterosexual couples and will further undercut the notion that marital commitments ought to be "sticky" in this way and must include these mutual commitments and financial intertwining.

Doesn't this completely undercut all of your reasoning? I realize you attempt to deal with this paradox in the next paragraph, but I read that paragraph and it still seemed paradoxical. If the voters wanted to protect heterosexual marriage (pardon me, the logic part of my brain involuntarily shuddered just now) by preventing homosexuals from entering into marriages, it is not fair (or logical) to prevent them from entering into arrangements that are not marriage in several important ways (as you point out).

Isn't this how your argument goes?

1. Conservatives stop homosexuals from having the monogamous type of marriage with constitutional amendment.

2. Homosexuals say OK, we'll have some type of lesser marriage then.

3. Conservatives say No! Your promiscuous pseudomarriage will destroy our marriages!

4. Homosexuals say OK, then give us the monogamous normal marriage.

5. Conservatives say No! That will ruin our marriages through some type of gay osmosis.

6. Homosexuals start reading Joseph Heller novels.

Am I missing something?

Sandra said...

Good luck convincing any court that getting "domestic partnered" is anywhere near the same thing as getting married. I assume you're itching to get in on the coming challenge, mmmm?

But it's all neither here nor there. In fact, if the Court does rule that the amendment prevent our lesbian and gay neighbors from receiving even basic protections (like hospital visitation, for Pete's sake), then an emerging consensus will label the amendment Draconian, and it'll be overturned all that much sooner. Your side should be careful not to overreach!

Within 15 years, Wisconsin will stop barring gay couples from marriage.

Rick Esenberg said...

Anon

No, it's not whatever. I assume - actually the Wisconsin Supreme Court tells me that I have to assume - that voters were aware of what was being said. But, of course, people said conflicting things and so it is necessary to look at what the voters passed and try to figure out, in light of the information available to them, what passage of the amendment necessarily implies.

As for whether voters were secretly motivated by animosity, I can't say but the the interpretive process doesn't require - or even permit speculation about unexpressed motivations.

Paul

Yeah, you're missing all sorts of things. We could go back and forth on whether the voters were right to conclude that "near marriage" for gays and lesbians would weaken the conjugal model of marriage. All I can tell you is that there are some very smart people on the left who believe that it will do precisely that and that this would be a good thing. More importantly that debate, for now, is over. The amendment passed and the question before us now is what it means.

As for what type of marriage can be reserved for gays and lesbians, it seems to me that the answer is no type - if it can and would be seen as a form of marriage. Of course, state could do any number of things to help same sex couples organize their lives. It can, as I said, provide employee benefits and pass reciprocal beneficiary laws. It can amend the law to permit contractual arrangements that address those relatively few problems for same sex couples that cannot be contractually addressed now.


Sandra

It doesn't mean that gays and lesbians must be denied hospital visitation. I am unaware of anyone who has claimed any such thing.

Anonymous said...

But, of course, people said conflicting things and so it is necessary to look at what the voters passed and try to figure out, in light of the information available to them, what passage of the amendment necessarily implies.

And you choose to dismiss out of hand the fact that proponents said domestic partnerships aren't impacted by the amendment, since it doesn't fit with what you are trying to argue the public must have meant. In fact, you admit outright it's irreconcilable. Sounds like saying 'whatever' to me.

As for whether voters were secretly motivated by animosity, I can't say

Except when you say, "There is little or no evidence in the ratification history that they were motivated by animus toward gays and lesbians."

Sure, it takes going beyond the superficial to say so, but it's right there. Same sex couples were portrayed as a threat -- how is that not supposed to elicit feelings about the negative value of gay and lesbian relationships? That doesn't need to lead to animus -- though I don't think it's unreasonable to believe it did for a good number, and I'm sure trolling some blogs would find comments along those lines and beyond -- but it does mean the motivation went beyond consideration of heterosexual marriage and into, at least in part, making a value judgment on what was supposed to be threatening it.

AnotherTosaVoter said...

Rick, I'd like to reiterate the request I made a long, long time ago when you last visited this issue, and that is that you explain precisely how it is that letting gays "marry" weakens the institution.

In our last conversation on the post, you made the assertion that changing the institution weakens it, by definition. I responded that the insitution has changed so much over time, from a property arrangement, to a way for kings to expand or protect their kingdoms, to an expression of "love", etc. etc. ect. It's been between one man and one woman, it's been between one man and many women. It's changed so much over time that, according to your argument it would now be so weak as to be meaningless. The fact is the institution has changed and will always changed, so isn't it a tad arrogant to argue that it just happens to be perfect now as you think it should be?


I'm not sure what this strawman you construct about "smart people on the left" who want gay marriage precisely to weaken it. I know of no other supporters of gay marriage, gay or straight, who believe anything like that. Frankly it sounds like a bogeyman argument, and I find it unfortunate you refuse to grant people something so important on such a weak argument.


Rick, I ask these questions as a straight married guy. I know for a fact letting gays marry would have no effect on my marriage, nor had it been legal on my desire to marry when I had the choice to make. I know this is the case for many, many other straight married couples. If we feel this way, then so could you and anyone else. So I guess the basic question is, why are we wrong? Why would our marriages being affected even if we fail to recognize it? What are we failing to recognize?

I guess that's three basic questions. I hope you'll tackle all three.

Sandra said...

It doesn't mean that gays and lesbians must be denied hospital visitation. I am unaware of anyone who has claimed any such thing.

Doesn't matter. What matters is how the public will perceive an amendment that strips folks of such paltry protections (the most memorable and concrete of which is hospital visitation) --- and how it'll perceive you (presumably, see above) and other activist-lawyers for your desire to deny gay couples something so innocuous. (This post's spurious and roundabout argument for why domestic partnership isn't innocuous just won't translate.)

A lawsuit will change the entire public debate. We're no longer maintaining the current definition of marriage. We're keeping little Henry's dads ("such nice fellows") from seeing each other in the hospital. Denying gay couples a law that affirms that protection will be seen as a denial of the protection.

Notice, for instance, that whenever anyone on the gay=bad side opposes the current proposals, they lump the state employee benefits in with the registry and then complain about costs. It's because they have nothing to say about the registry and (don't you think?) because they've seen some polls that tell them to keep their hot little hands off of it.

The thing is bait, and I look forward to seeing the opponents of equality bite.

Anonymous said...

lets keep those gays in their place to preserve marriage while i go to argentina to have an affair